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Hearing video

ZBA Hearing - December 21, 2021

Philadelphia Zoning Board of Adjustment (ZBA)Dec 21, 20214h 4m

David,

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just state your name again for the court reporter

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you've already been sworn. David

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Orphanides.

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And just real quickly on

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case

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2021-003885

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138-40

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task on 135 Furnan, I did

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send in a letter i did request that i'd be named as uh the attorney that be continued as with

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attorney moving party that's fine thank you sir thank you anybody else yes chair we have

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mr stephen you can unmute yourself

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good afternoon mr chairman members of the board steven pollack on 5328 wakefield street it's a

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pleasure to appear in front of you, Mr. Bergman, for the first time. We are unable to get an RCOB.

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Do me a favor, state and spell your name, and then I'll swore you in.

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Okay. Stephen, with a P-H, Pollock, P-O-L-L-O-C-K.

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Right. Do you swear or affirm to tell the truth, hold the truth, and nothing but the truth?

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I do, Mr. Chairman.

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Okay.

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This is with regard to 5328 Wakefield Street 2021-003851. As you stated, we are requesting a continuance. We were unable to get a RCO meeting in a timely fashion. We were just hopeful that we could get it as early a date as possible for the continuance, if that is possible, Mr. Chairman.

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I have to go to Tanya for that. Tanya?

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so mr pollack i would suggest you do a charity moving party and then once you are able to secure

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your meeting with the rco you reach out to me and i will work with you with a good date

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i appreciate that uh madam uh administrator and mr chairman thank you very much and members of

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the board thank you very much that would conclude my business all right any other continuities today

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no hands no hands share

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so before we start with the list the city of Philadelphia school district has request

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Before we start with the list, the city of Philadelphia School District has requested that be permitted to file non-proton appeals for its properties, 7809 Castor and 321 Ryan Street.

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I vote yes for both properties.

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Thomas Holloman, my vote is yes for both properties.

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Ishmael Shaheed votes yes for both properties.

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Thank you very much.

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First case, MI-2021-004-507-1420 North 7th Street, Attorneys Richard DeMarco, appeal against L&I.

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Chair, if we could also promote Leonard Reuter, the attorney for the city.

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Yes, and they're both coming in now as the panelists.

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Good afternoon, everyone. Can you hear me?

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Sure. I didn't hear Sharon. Forgive me.

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She's here. She's here. I know. But when I was connecting and promoted to panelists, Sharon, did you need anything from me?

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What was your comment? Just that Leonard would also be promoted.

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Thank you. Mr. DeMarco, identify yourself and spell your name for the court.

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Yes. Richard DeMarco, D-E-M-A-R-C-O, on behalf of appellant.

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Okay.

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so white woman is the city attorney on uh yes hi um may please the board leonard f reuter

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senior attorney for the city of philadelphia spell your name for the court reporter please

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uh first name is l-e-o-n-a-r-d last name r-e-u-t-e-r thank you do you swear affirm to tell

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the truth the whole truth nothing but the truth i do thank you mr demarco good afternoon everyone

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So I'll try and good afternoon, Mr. Chairman. I'll try to lay this out. It's kind of a technical issue. It's a little bit muddled, the history here. I'll go to the exhibits.

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Hi, this is Tanya Sankit, the administrator. Mr. DeMarco, we're having technical issues. Can you attempt to share your screen? If it doesn't work, then you can go forward without sharing.

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it says host disabled participant screen sharing okay no problem if it um is okay with the chair

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we can move forward without any kind of sharing screen and we'll just take your audio thank you

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kindly that's fine with me oh all right i'll do my best in that uh to shame but let me try to

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explain it then as best i can the appeal to ellen against ellen i is an appeal from a denial of an

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administrative review um this board granted um a variance for a for new construction at this

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property for five units um with dimensional variances for open space and rear yard uh this

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was in 2019 my client purchased the property immediately thereafter and went in for an

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administrative review to construct a different footprint than what the board had approved in the

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2019 case. So what's important to understand is that this board already found hardship and granted

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a dimensional variance for open space in rear yard in 2019. The only change that my client

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was seeking was when he was granted administrative review for his building there was an atrium

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interior atrium contained in the structure. We are asking to remove the atrium from the site

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and build to the same footprint that was the subject of the administrative review which was

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granted last year. The atrium was 4% open space that I would show you if I could on the screen.

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It was only 4% open space, but the open space now, it was 14% with the atrium. Without the atrium,

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it's 10%. So the minor error that appears on the denial by L&I from the administrative review

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is that we're going from what was 14 percent to 10 percent open space. I'll have the architect

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with us in a moment, but what has happened was while very a good intention,

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while well-intentioned at the outset, the atrium has become architecturally unfeasible

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for a number of reasons. One, and this is why we feel, and the reason why we feel L&I should

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have granted the administrative review is because it's an open space variance that this board has

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is because it's an open space variance that this board has already granted, and we are altering

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already granted.

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the site plan in order to get approval from L&I, and it's the same exact variance that was already

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granted by the board. But what has happened with the atrium is that it has become untenable,

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one, because we need two means of egress, and the original plan that was approved by this board in

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2019 only had one stairway, and L&I has become far more strict since that time in requiring

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a second staircase. There is less room to include the atrium because of that.

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Secondly, the atrium never functioned as open space. It went straight down,

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and it was never providing direct sunlight. It was only providing indirect light,

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and it's a privacy issue.

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The atrium was too small

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and the tenants would be able to look

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into each other's units.

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And we realized, again,

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while well-intentioned at the outset,

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it was a privacy issue as well.

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Thirdly, the COVID-19 economy

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has created some supply issues

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for the materials necessary for the atrium

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and has driven up costs.

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So while the developer was able

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to incorporate these items prior to when this board initially approved the matter. Since then,

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the market has changed significantly and caused a cost issue as well. The open space is actually

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being provided at the upper level. There is a roof deck. While when we had the atrium,

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that space was not available, that space is being returned on the roof. And of course,

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the rear yard is available to all tenants. While it's only 10%, it's still available open space and

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all tenants can access it. So that's the issue. In a nutshell, Mr. Chairman, I'll ask our architect

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to just adopt what I've stated as correct and accurate, and we'll have the developer do the

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same. We're asking for leeway here from the board in a nutshell. This board has already granted the

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variance that we're asking. There is a 4% increase in the variance, which is why L and I denied

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the review, but it's a, what we think is a de minimis change. It's been rendered necessary by

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architectural reasons that this board already granted the variance for the construction,

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the variances for the construction. So can we, um, why don't you put your, that's it.

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uh so i'm sorry mr chairman i should put put your put your architect first and ask

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i'll ask plato marinakis to be um uh authorized please sure

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mr marinakis can you hear me yes hi i'm state your name and spell it for the court reporter

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please yes plato marinakis p-l-a-t-o-m-a-r-i-n-a-k-o-s one of uh you want my address

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107 south second second street philadelphia pa do you swear or firm to tell the truth the whole

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truth nothing but the truth yes i do mr marinakis was my summary as to the history of the property

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accurate and true and accurate and would you agree with it as your testimony yes i would

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And did I state the architectural reasons for the removal of the atrium accurately as well?

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And can you adopt that as your testimony?

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Yes, you did.

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Depending on the ad, I mean, did I leave anything out as to why the atrium is not viable at this property?

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Mr. DeMarco, before he answers that, can I ask one question?

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Looking at the examiner's comment on the administrative review request, I'm reading it now.

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The proposed amendment further reduces the required open area to 10% from 21.6, which was granted by the ZBA on 11-6-2019.

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That's not the same as the numbers that you stated. Can you explain that?

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Yeah, I can. I can. In reviewing this closely, what appears to have happened is that the plan that was approved by that administrative permit,

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um had 14 open space so it appears that um that was not accurately stated the atrium plan

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had only 14 open space so um it appears that potentially l and i may might not should probably

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not have granted over-the-counter the administrative review request last year, but what

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over the counter, the administrative review request last year. But what I want to make

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clear is that the property was framed out with the plan that included the atrium. And

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while those numbers are correct when compared with the 2019 plan that was granted by this board,

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um the administrative review that what that that was successful last year

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was far less than 21 percent open space it's 14 percent hope that makes sense it does thank you

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okay back to plato plato um do you have anything to add as far as the architectural issues

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with the only thing i would add is you need two stairs but the stairs have to be remote

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so that has to not to get into the weeds but the stairs can't be right next to each other

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and because they have to be remote that makes it harder to have the atrium in there that's that's

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why if that makes sense yes so um i believe i believe liz casey is the developer's representative

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i'll just have her adopt my statements as chairman accurate

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state your name and spell for the court reporter please

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Do you see Liz Casey?

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No, I'm not seeing no one by that name.

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If you're in the audience, can you please raise your hand?

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For Ophir Camarian.

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Okay.

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Raise your hand virtually, whoever's on for us.

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It is Liz Casey.

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Hello, sorry.

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State your name and spell for the court reporter, please.

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Elizabeth Casey, E-L-I-Z-A-B-E-T-H-C-A-S-E-Y.

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Right.

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Do you swear, affirm, to tell the truth, the whole truth, nothing but the truth?

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Yes.

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Thank you.

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Ms. Casey, did you hear my factual testimony to the board?

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Yes.

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Do you agree with it and adopt it as your testimony and is true and accurate?

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Yes.

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so mr chairman and members of the board uh we appreciate um your time here that's basically it

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i just want to reiterate that the board uh that this matter was not opposed by the neighbors of

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the 2019 case the property was granted multiple dimensional variances so the board has already

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found hardship we don't dispute that we have increased a slightly increased the amount of

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the dimensional variance, but it was to change what was a very well-intentioned architectural

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feature initially. The removal of the atrium is not visible to anyone in the general public.

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The change is happening within the building, so there's no impact on the community, and it just

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is not working for us architecturally. So in the current environment, we appreciate the board's

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leeway in allowing us to remove it and uh have the two stair towers as as necessary um and we

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appreciate your time thank you mr reuter going to testify uh thank you sir um this the uh position

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of the city here is that the code section uh relating to administrative review which is 14 303

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sub-16. It says that the only issue on an appeal of this nature is whether LNI properly denied the

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request for the administrative adjustment. And I believe Mr. DeMarco, and we appreciate the fact

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that they are essentially saying that LNI was correct in its denial because they are in fact

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increasing the intensity of the variance of the dimensional variance for the open space that being

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said i just want to know ask and perhaps mr demarco can answer this if he could just verify

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that the procedures that were required by the administrative review precision were followed

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that is did you and whether or not it was submitted to the board that is did were copies of the

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administrative adjustment sent to each of the RCOs, to district council person, and to all the

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persons who had previously entered an appearance for the variance case? Were all of those persons

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and entities notified of the administrative adjustment request? I recall that they were,

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Len, and I can confirm that's, well, I would say this, the original application,

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uh i did not have records availed to me it was the prior owner um but we did notify

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uh who we were required to notify for the second administrative review but i didn't have

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appearance slips for that case but i would note that uh the board granted the case

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for that case but i would note that uh the board granted the case of 2019 i did check with the

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attorney and there was no opposition at the original case well again there was i did not

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have appearance actual appearance lips available were the rco and the district council person

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notified uh annie moss is the rco and was notified i'm sorry you dropped any loss okay

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okay and did you i'm sorry mr reuter mr demarco you know how sometimes you go fade in and out

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could you just yes stay close to the mic thank you sorry no worries so um again if

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if you're saying that you did notify the rco of this administrative request and the council person

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on this administrative request, and that there has been, are you saying that there has been,

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you've not received any response, there's no opposition today for this administrative request?

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That's what I'm, that's, yes, exactly. So Annie Moss was in support of the original application.

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Well, again, I'm not asking if they were in support of the original application,

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I'm asking if they were in support of this administrative adjustment.

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they were notified they did not take a position either way okay that's fine great um now so again

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we would just reiterate for the record that there has been no error alleged on behalf of l and i in

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this case uh nevertheless uh the city will defer to the judgment of the board um on on this matter

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in other words the strict reading of the of the uh the code uh is that the request should be

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denied and they should just simply seek a new variance um but given that uh we're being told

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that the rco and the council person were notified um and that they've received no negative response

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um you know we will just leave it to the board's discretion i would only thank you len i would only

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respond as far as the, this is what we would call a minor adjustment. I would agree with Len that

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Helen and I filed the technical requirements. I would say to you that this variance that is

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only being slightly increased and it is a minor deviation from the original plan and the rules as

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as to administrative review do allow minor deviations?

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Well, just for the record,

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