civus
Hearing video

ZBA Hearing - November 2, 2021

Philadelphia Zoning Board of Adjustment (ZBA)Nov 2, 20214h 17m

we do have I did communicate with both Ms. Sunkett and Ms. Saleta we were working on our

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tax clearance right up until this morning we had an email from the revenue from the law department

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that we had a temporary tax clearance so then today we just received this I did not submit

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this I can forward it but this is information that I have we just received today from the

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revenue department so we would ask that this uh that the information we provided is information

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that's acceptable to the board uh to satisfy that requirement of the zoning code and here's

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the email communications that we had uh yesterday uh and then uh our 14 303 here's the email from

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the planning commission designated homes i'm sorry that's the email with tanya sharon and lakeisha

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Our posting photographs, Exhibit 21, both at Morrow and at Craig Street in compliance with the requirements of the zoning code.

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morrow and at craig street require and compliance with the requirements of the zoning code

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and then here i'm sorry is the email designating for email from the planning

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commission designating homebrook civic association association as a coordinating rco

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our address address list our 14 303 notice we had to send out two notices again

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getting things scheduled originally we didn't have a date and time by the time the 20 days was

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up for us to send notice so we still send out the notice with it to be determined time we had the

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zoning board hearing so we provide information so we provided that the certificate of mailing

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and then we send out a subsequent once we had the information regarding the coordinating rco meeting

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i think it was within a couple days in compliance with the zoning code requirements we sent out an

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additional notice um so with that and with the communities non-opposition to our proposal the

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existing conditions regarding residential structures other residential structures and

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uses on our side of craig street both to the lot width and to the side yards

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and the non-residential uses directly across the street we submit to the zoning board that we've

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met the requirements for the granting of the dimensional variances in this case with that

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I'd like to have Mr. Duller and Mr. Federoff adopt my statements.

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I'm here. This is Alex Duller. Alex, please identify yourself with a record for your first

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and last name. Alex Duller, Fusa Designs, 622 North 3rd Street, Philadelphia, PA 19123.

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You swear a firm to tell the truth, the whole truth, for nothing but the truth?

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I do.

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Thank you.

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Please proceed.

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I'm sorry, Chair.

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This is Tanya.

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Again, I would request a spelling.

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Thank you.

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Oh, yes.

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I'm sorry.

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Please spell your first and last name, please.

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Alex, A-L-E-X, Dollar, D as in David, U-L-L-E-R.

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Thank you.

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And, Alex, did you hear the statements I made today to the zoning board regarding the project?

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Yes.

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And your firm drafted and prepared the zoning drawings?

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Yes.

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and uh and the renderings and things of that nature yes we did okay and uh were the statements

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i made to the board today true correct to the best of your knowledge yes and would you adopt

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them as your own yes okay thank you and serge you raise your hand i'm not sure if he's here he

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It should be on. Did he just raise his hand?

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Yes, he's here. You can unmute yourself, sir.

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Serge?

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Good morning. Do you guys hear me?

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Yes, now we do.

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Good morning, sir. Please identify yourself for the records by your first and last name for the scenario.

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Can you unmute yourself, please?

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can you hear me yes something's wrong with my computer uh so sergey fedorov s-e-r-g-e-i

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uh fedorov f-e-d-o-r-o-v you saw our founder tell the truth the whole truth for nothing but

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do you i do serge uh you're the owner of seven stars remodeling this is correct okay and did

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you hear the statements that i made today to the zoning board yes okay and they're true and correct

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to the best of your knowledge yes sir and would you adopt my statements as your own yes okay thank

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you thank you with that we rest reserving the right to rebut any further statements uh that

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might be made during the hearing thank you uh does the board have any questions no mr chairman

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thank you is there anyone else who likes to speak in this matter

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i see no hands chair thank you mr fanides you said two pages yeah i mean there are two separate

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plans one's a one page of the survey plan and one page zoning drawings total of two

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Thank you. Planning Commission. Good morning, David Fecto, City Planning Commission, Mr. Chairman, members of the board. The comprehensive plan recommends no change in the single family zoning at this location. This is a 7,147 square foot lot. Although the code allows the applicant to divide their property into three lots, it does not require the applicant to do so.

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Dividing into only two lots would help the applicant come closer into conformance with

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the dimensional standards of the zoning code. The applicant has failed to show that the requested

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the applicant has failed to show that the requested variances are necessary to continue

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variances are necessary to continue deriving value from this.

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deriving value from this property we recommend that the board deny the requested variances

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thank you well we obviously respect the planning commission and and mr effecto's opinion given the

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current conditions on the block where none of the other residential uses comply with the requirements

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or are very are built the same way with no or little side yards and have lot widths similar

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to what we're proposing similar to the Valley View case we think that this what we're proposing is

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in keeping with consistent with what exists on our side of Craig Street and obviously you have

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to take into account what exists directly across the street with those large containers I forget

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what that's called it's the insectarium i think it's a bug museum or something i don't know um

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but there are other industrial or light industrial commercial uses so again we'd ask that you take

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that all into consideration with all due respect to the planning commission thank you calendar number

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For MI 2021-002716, 8051 Morrow Street, my vote is yes, with the revised plans, two pages approved today.

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Thomas Holloman, my vote is yes, with proviso.

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James Snell, yes, with proviso.

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Okay, good luck.

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Thank you.

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Let the record reflect and Ms. Vice-Chair Tenere, it's present.

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Okay, we are.

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Moving on to the next case.

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Thank you, Professor Plaza.

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Calendar number MI 2021-003248-1201 West Girard Avenue.

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This is an appeal against L&I filed by Council President Daryl Clark, challenging a by-right permit issued to HPRA 2013 LLC for the proposed development of its property at 1201 West Gerard Avenue.

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After originally voting to grant the appeal, the Board received a request to reconsider and rehear the case from the property owner.

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That was granted, and we are here today for the hearing on reconsideration.

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Because this is a hearing on reconsideration, all testimony, exhibits, and documents submitted at the initial hearing are hereby incorporated into the record.

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We will begin by hearing from Sean Whalen, the attorney for the property owner, the party that requested reconsideration.

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We will then hear from attorneys for the city and the councilmen.

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Please note that because this is an appeal against L&I, not a variance or special exception case, members of the public will not be permitted to testify.

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Can the attorneys one by one raise their hands so they can be promoted?

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okay i see you up mr whalen good morning madam chair sean whalen w-h-a-l-e-n

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do you swear from the tell the whole truth and nothing but the truth i do

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okay is there anyone else that has to be promoted

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sure we have maggie white we have mary jones and we have leonard reuter okay mr reuter can you

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please put your name on the record and then i'll swear you in spell your last name too

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can you unmute yourself Mr. Reuter

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Ms. Sunkit should I be swearing all of them in right now or can I do it one by one

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um if it's up to you chair I would think it would be a good idea to swear them in all now

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in case they need to object or anything thank you I agree thank you Mr. Reuter name and address

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please spell your last name and I'll swear you in uh good morning hi sorry making sure my mic

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was on uh good morning members of the board Leonard F. Reuter senior attorney for the city

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of Philadelphia I'm here with my colleague Maggie White Maggie

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do you swear from the tell the whole truth and nothing but the truth

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do you swear or affirm to tell the whole truth and nothing but the truth i do thank you maggie

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i do thank you

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can you put your name name on the record spell your last name my name is maggie white m-a-g-g-y

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w-h-i-t-e and i'm here for the city of philadelphia thank you do you swear or affirm

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to tell the whole truth and nothing but the truth i do is mary jones here

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ms chairwoman i just wanted to notify the board uh that uh ms white uh is

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assigned to election court today so she may be leaving the hearing early

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so i'll let you know when that happens thank you so much is mary jones here yes i'm here

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hi mary good morning can you put your name on the record and spell your last name

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yes good morning mary jones j-o-n-e-s um for um on behalf of council president daryl clark

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uh city hall room 494 do you swear for him to tell the whole truth and nothing but the truth

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i do

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okay so everyone's been promoted

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Yes, that should be everyone.

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Thank you, Ms. Sunkett. Okay, Mr. Whelan, I think you begin.

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Thank you, Madam Chair. Sean Whelan here on behalf of the property owner

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for the property at 1201 West Girard Avenue.

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uh this is as madam chair described for the board a uh a pending appeal against lni from

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council president clark and his office uh we are obviously the intervening property owner here

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um as such you know that the matters before the board today are really legal in nature

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and you know the facts are kind of locked in it was previously stipulated to

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the accuracy of all the documents submitted and that there was not an error committed

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in the review by Anna Gintart who was the zoning the underlying zoning examiner regarding the

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zoning permit fundamentally at issue here today before the board. So I will attempt to be brief

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in just giving some context to the legal issues that are arising here today. And I won't get too

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much into the details for that reason. But I think laying out the timeline and just giving a quick

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overview of the property is really going to help this board see the issues before it.

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So I just started sharing just to give you a quick overview. Here's Girard Avenue, and there's North Broad Street. The property is 1201 West Girard, which is the entirety of this block, from Girard all the way back to West Flora Street, and from North 12th Street over to North 13th Street.

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um what the board has heard previously is there this is an older image uh this was a one-story

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ride aid uh that was on the property um for at least uh 20 plus years for as long as anyone could

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could remember i think was the testimony on previously before the board um what you can see

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is this was uh the property was mainly used as an open surface parking lot with this uh this one

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property here. Again, this is just this just sort of gives you an idea of the the overall scale of

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what the project used to look like. I should note that the building has been completely demolished

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at this point, and this is a an entirely vacant lot, which I will get into and why that's relevant

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now. So here was the zoning map as it stood at the time of the application. The property was

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zoned RM1 entirely. This has, as I'll get into, been entirely rezoned at this point

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by the Planning Commission in coordination with Council President Clark's office and City Council.

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And here are images of the building that was proposed and approved. So again,

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And then, notably, this project had to go through CDR. And so here's our CDR referral issued on August 28, 2020. It was for a 166 unit building with 31 parking spaces. That's going to be four stories and 45 feet tall. Again, in line.

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that's going to be four stories and 45 feet tall. Again, in line with RM1 zoning, it was to be

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entirely residential and will be entirely residential. As it was by right, there were no

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refusals issued. And we did, on behalf of the development team, there were three public RCO

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meetings at which we presented this project to several community groups. There were two CDR

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meetings before the Civic Design Review Committee of the Planning Commission, and there were also

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two additional meetings between the developer and the community on an informal basis that were not

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formally noticed public meetings. At this point in time, there was extensive discussion about

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a community benefits agreement, and the board heard testimony at the last meeting that

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the developer had stopped such communications. Those communications have been not responded to

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by the community. The developer is here and can speak to that, but has reached out numerous times

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to, I believe it's Ms. Becton who was working on behalf of the RCO with regard to a possible

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community benefits agreement. And the developer has not had any response. So again, just to

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lay this out, because it's actually a very straightforward case that has become very

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procedurally muddied. So I'm going to try to set forth a timeline here just to give context to the

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legal issues that are presently before the board. The zoning application was filed actually more

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than a year ago, almost exactly 15 months ago on June 25th, 2020. As you just saw on August 28th,

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2020, we received a CDR referral from L&I confirming that the project was by right,

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but that the project triggered civic design review meetings, and we then proceeded through

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that process. Based on that confirmation from the city, the owner purchased the property at a cost

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of approximately $5 million on September 2nd, 2020, over a year ago. And shortly thereafter,

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Rite Aid was actually paid a termination fee of almost $3 million for it to cease operations

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going forward once zoning approval was achieved. The first meeting that we had with the RCO was

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actually with the Yorktown Community Development Corporation in person. This was mid-pandemic,

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but we still met with them in person at their request on October 20th, 2020.

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October 21st, 2020, the very next day, we actually met with the 14th Ward Democratic

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Executive Committee by Zoom, who was in fact the designated coordinating RCO for this project.

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But Yorktown community did want to take a co-lead role, which we obliged and worked

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directly with them as well. On November 10th, 2020, we held our first CDR meeting. And then

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following up after that CDR meeting, it was clear that another meeting with the RCO would not only

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be warranted, but would benefit all parties. So on December 9th, 2020, there was a second RCO

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meeting that was hosted by the Yorktown Community Development Corporation and also included the

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14th Ward Democratic Executive Committee sort of in their co-lead roles at this point.

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Thereafter, on January 5th, 2021, we're now into this year, this project went through its second

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and final CDR meeting. On January 6th, 2021, a CDR conclusion letter was received. And following

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up after that CDR conclusion letter, on January 14th, the zoning permit at issue here was obtained.

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And that zoning permit is for the complete demolition of all structures. That's the right

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aid that can be seen on this image right here. And the new construction of the proposed four

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story building. So that happened on January 14th, 2021. That permit was posted the next day,

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which was a Friday on January 15th, 2021. And therefore any appeal period from that would have

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And therefore, any appeal period from that would have run on February 15th, 2021, 30 days thereafter from the posting.

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It should be noted also that the appellant is actually not just a standard individual neighbor where notice issues are tantamount,

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But rather, as the city council president actually gets printouts and reports of every permit issued in the district, and so they would have had immediate notice of any permit issued in addition to the posting.

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Based on the permit being pulled and being posted, then on January 28, 2021, Rite Aid actually vacated that store.

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Um, the, uh, February four 15th, actually, which was a Monday, um, gave more than 30 days for any

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appeal to be filed, um, of that January 14th notice. Uh, we were not served with any notice

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at that time. Uh, again, we had been, you know, this is a very public developer. Um, this is a,

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I had entered my appearance at every stage. Everyone involved was aware of who we were.

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There was no notice of any appeal served before the expiration of that 30-day deadline.

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In fact, on February 23rd, eight days after the expiration of the 30-day appeal deadline,

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I personally reached out to the Zoning Board Administration and was informed that there was no completed appeal on record, and that if there was, my appearance would be entered therein, but that there was none as of the 23rd.

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Therefore, having confirmed that there was no appeal pending and no appeal that needed to be worried about for this case, because it was by right, the developer proceeded to rely on those permits and move forward.

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