The City Atlas website.
I'm not objecting to everything that you just said.
So noted.
Thank you.
Because we have different documents to prove otherwise. Thank you.
The city, I would just note that no documents were provided to me. I've actually requested before both hearings, any documents submitted.
Who did the request come to?
To the zoning board itself.
I submitted all my documents to them as well before the previous hearing.
so so well thank you i just wanted to make my you objected so i just wanted to make my objection
noted um i'm almost done with the uh you know the timeline here on march 2nd um there is so the city
atlas website um here's a screenshot of it actually shows right here where i'm circling
that on March 2nd, 2021, the zoning board processed an appeal. It's unclear what that
appeal could be against, because even though it says that it's against the other permit,
that would actually be two and a half to three weeks late as a permit or as an appeal of that
permit. So you'll hear that one of our key issues in this case is that there is no timely appeal
filed against the primary permit and that we believe that this permit, if any appeal was
timely filed, it was actually against the demolition only. So that was on March 2nd is the
first thing that this has shown. Again, neither the developer nor myself were provided any
notice, either from the city, the zoning board, or the appellant of any appeal, or the docketing
or processing of any appeal at this date. Therefore, the developer continued in full
reliance on approved permits that were unappealed. And on March 2nd, actually that same date,
submitted a building permit application. And then on March 10th, 2021, a demolition permit
was submitted, which was then pulled on March 15th. That permit was posted and publicly noticed
by everyone. And that permit, which was just for, quote, the
And that permit, which was just for, quote, the demolition of existing structures on the lot, was pulled directly by the demo contractor and in kind of furtherance of the underlying permit at issue.
And on April 21st, demolition of the permit or of the all improvements of the Rite Aid building were completed.
At this point, again, without any notice, the developer still had paid a termination fee, had had Rite Aid leave an ongoing business and stopped paying rent, and had actually demolished a viable building, and now had a vacant site.
All right. On April, that demolition was completed on April 21st, 2021. On April 28th, a week later, that's actually when the fifth district overlay that applies now to this property was amended in city council and passed.
I believe that actually April 28th is the date that the mayor signed it. That changes the density allowance here. And so what you'll hear as I go forward in the legal arguments is there's no ability here of a no harm, no foul, because through ordinances and new overlays,
This project that is presented and was fully approved by Wright at the time is now could no longer be proposed or approved by Wright.
So then actually on May 3rd, we received from ZBA administration an email notifying the development team of an appeal against the zoning permit.
So this is the very first notice that we have of any official appeal against the January 14th permit. You're now three and a half months, two and a half months later, sorry, of when this happened.
Again, you know, the development team has already secured vested rights at this point, having expended multi-millions of dollars in reliance of the permits at issue.
Um, then following up, uh, just a couple of weeks later on May 20th, 2021, uh, council
president Clark introduces to new bills for the Gerrard Avenue overlay and the North Philadelphia
overlay, uh, both of which, um, sort of, uh, truncate, uh, any proposed project of this
nature. And actually, as you can see on this screen, the entire project, which was RM1,
has in fact now been remapped to CMX2. So then finally, on June 9th, 2021, just three and a half
months ago or so, we held the first ZBA hearing. The board will, of course, remember that, and that's
on record, and we have submitted the transcript with our exhibits for any review. And then
that case was held for a decision for a week. On June 16th, 2021, the ZBA rendered its decision.
That was rendered yes on 5-0. I will get into one of our grounds for
reconsideration here, which we filed a timely motion for reconsideration on June 25th,
which was then granted on July 14th. And it should be noted that the zoning permit has been
reinstated and the building permit has been issued and construction is moving forward at this time.
um so the issues the that kind of gives the you know the general framework of what happened and
how and the timing of how it happened the issues are uh numerous from a legal situation uh the
first one is that and the first two of these the city actually joined in in the motion for
consideration. The first two issues are that it is unclear what, you know, or I should say
it appears to be clear from the factual record that there was no timely appeal filed of the
January 14th zoning permit that's at issue here. Objection.
uh zoning permit that's at issue here um objection again the first notice that was sent to the
development team was may 3rd from the zoning board administration um the first record on any city
website or anything is actually this what's up right now on the atlas page is uh march 2nd 2021
both of which are well after the zoning permit for new construction which was issued again by
Wright with no refusals. So the first legal issue is any appeal that was filed on either
March 2nd or in May or you know relevant in May would have been simply against the demolition
only permit. Again, that permit is closed out. Any issue with or any appeal with regard to that
permit would be moot at this point in time. Again, the demolition is complete. All of the
structures that were shown at the site are entirely removed and now you have a large vacant site.
So that's the first issue is that there's no timely appeal here. And therefore, you know, the first issue legally for the board to decide is, you know, whether this appeal is simply moot as against the demolition permit only.
The second issue in this appeal legally is that there's an unclear language of the vote. So again, in the first vote, not only is there an untimely nature of the filed appeal, there is a question as to which permit, underlying permit, is being appealed.
in addition to that lack of clarity there's a second lack of clarity with regard to the actual
language of the vote which simply said granted yes on all chairs yes is is unfortunately not a
a descriptive term in this context because this is a this is not a standard special exception
hearing or a variance grant, this is actually an appeal against L&I. And so the board would
have to say, for instance, you know, appeal denied against L&I permit still valid or something of
that sort. So that's the second issue. The third issue I have already somewhat alluded to, and I
I know the board is not intending on taking testimony here, but I did just want to advise
the board that Mr. Ori Fibush is here, should the board have any questions with regard to the
damages that I've alleged with regard to the vested rights here. In essence, there's tens of
millions of dollars at stake. This is, again, not a no harm, no foul. This has been a serious issue
of damages and continuing damages and delay. So I've set forth more of those in the motion
for reconsideration. Again, I described the numerous overlays that the council president
and city council have passed through and with the planning commission coordination
over the summer which basically takes we had an approved project for four stories 45 feet
and 166 dwelling units that project would now basically be eviscerated or anything of the sort
so again it's this is not a scenario where um objection yeah there can even be a further
application. The overlays actually limit overall development to 94 units, and that would have to
be reviewed by L&I, of course, but I will represent that it would be limited almost by half.
So just to wrap up, the final issues for legal arguments on appeal,
So, any by right permit under the zoning code is entitled to a presumption of validity.
This is actually dating back all the way to the 1920s.
There's an entire litany of cases.
And that validity is based on the fact that zoning ordinances are legislative acts and
must be presumed to be valid and appropriate.
Here, there's no argument that Ms. Gindhart, as the underlying zoning examiner, applied the appropriate conditions of the zoning code to the documents submitted to her.
conditions of the zoning code to the documents submitted to her. And again, any issues of that
were stipulated to as to the accuracy at the time. The last couple issues are that
here I would argue that the zoning board does not have authority to rule on this case and must
dismiss it as an improper appeal. Again, not only is it untimely, but under section 14.103.4.1,
the zoning board may, after public notice and public hearing, which is how we're here today,
hear and decide appeals in zoning matters where error is alleged in any order of requirement
decision. There's no error alleged here. The allegations on appeal are simply that
while the project was by right, the project itself was somehow not appropriate or contextual for
the neighborhood, relying almost entirely upon the fact that the property should have been
remapped like much of this neighborhood was over the decades, but it was admitted on the record
that it was not remapped. It was RM1, and therefore there was no error. It was simply that
but for this lack of remapping, the property would have been remapped sometime in the last
20 years, and the project would not have been appropriate had it gone forward. But again,
that's not an issue for the zoning board to decide. And therefore there's no error alleged
and any errors were waived at the last hearing. Um, finally, the last two points are, you know,
the, the, uh, council president bases his arguments on essentially the preamble 14 dash
14-101 of the zoning code. The, you know, including, included in one of those is actually
an intent, 14-1013C, that states, quote, the intent of the zoning code is, quote, to promote
growth and economic development by removing barriers to enable responsible development
to proceed as of right. I would posit that this is the quintessential argument we have here,
which is we have an as of right project that went through the process at all times
and was fully reviewed and approved by the city without error. Whether or not the project is
appropriate or liked or appreciated, I'm not going to weigh in on, and I certainly understand
everyone will have their own concerns and issues along those lines, but that's not a matter for
the zoning board to decide. And finally, dating actually back all the way to the 1850s
and continuing up through Pennsylvania Supreme Court law to date, but even through the 70s and
80s. As a matter of law, the preamble 14-101 is not part of the zoning code itself. It is used
to provide context and a further understanding if there's some ambiguity in the underlying code or
legislative act. But here, there's no ambiguity. There were no issues. There were no errors.
any argument which the board heard a lot of with regard to the sort of desirable nature of zoning
and the preamble of the zoning code set forth in 14-101 is really of no consequence here because
it's not those are not code sections specifically that any applicant has to make has to meet rather
So with that, I would rest.
This is, you know, those are the legal arguments that I believe are before the board at this time.
And I would be happy to answer any questions that the board has.
Does the board have any questions?
No, Ms. Chair, Chairlady.
Chairlady.
All right, then I would turn the floor over.
I'm not sure who goes next, Madam Chair.
It's up to you.
I'm just listening to that beeping on Leonard Reuter.
Thank you, Madam Chair.
Thank you, Madam Chair. I'm still trying to get my video to start. The city's network is extremely slow lately, and I think that's probably, since we're all going through it, that's probably, the camera's supposedly on, but you'll just have to bear with me with that.
I'm still trying to get my video to start.
The city's now.
In the meantime, I would basically just follow up and reiterate much of what Mr. Whalen said.
I think the bottom line here is that there has been no challenge raised to the validity of the actions taken by L&I.
In other words, the permit application materials, the plans, documents that were submitted to the city to L&I for the permit approval were reviewed by the plans examiner.
and who applied the code as written. And as a result, the permit was therefore approved
and ultimately issued. So with that, and again, nobody's permitted, I believe in this instance,
nobody's permitted to introduce any new evidence. There was no evidence introduced whatsoever that
there had been any impropriety in terms of L&I's actual approval of the permit or the application
of the code. Therefore, you know, there's, as Mr. Whelan just said, there's really no error
alleged. So the argument seems to be mostly a challenge to the validity of the ordinance,
I guess, as applied in this particular instance. And we just, so again, as Mr. Whelan said,
this board does not have any authority to invalidate an ordinance of the zoning code it is
the the board is required by law to follow the zoning code as written that does not mean that
Mr. Clark Council President Clark cannot preserve a challenge to the validity of the ordinance
and then take that to the court but it's simply that this board doesn't have the authority to
make a ruling on that. As far as the issue of, you know, again, going to the validity of the
ordinance, we pointed out before, and I wanted to reiterate that this is not a property that had
been recently remapped to allow the proposed purposes. This lot, along with several others
along this portion of Girard had been mapped, what's now the equivalent of RM1 back in 1970
or 71.
So this proposed use was always permitted, well, not always, but certainly has been permitted
by Wright for almost 50 years.
And in fact, the Rite Aid, which exists on that lot, was itself only allowed by variants.
So, in fact, the Rite Aid itself, now that that has been demolished, you couldn't put that, well, I mean, obviously there's been overlay changes, there's been other changes, but like under the RM1 classification, that wouldn't have been allowed.
So, that was only there by variance. So, that being the case, again, we certainly, the city is certainly sympathetic to the concerns of the neighborhood and the community groups.
But again, it's something that requires a legislative change, which we understand has, in effect, taken place through the overlays.
but at the time this application was submitted the proposed use was clearly by right and there's
really been no challenge to that whether you know again this board and the city planning
commission and the department planning and development have often encountered situations
where you know there maybe has been an error in mapping or maybe something should oh there I am
Something should have been mapped a certain way and wasn't. This often happens when you have parcels that are bordering, you know, within zoning classifications.
And again, we offer no opinion at this point whether this should have been mapped something else at the time.
But the fact is, at the time the application was submitted, the proposed use by this developer was by right, and there's really not been anything introduced that suggests otherwise.
And therefore, again, as a matter of law, this board doesn't have any authority to grant the appeal.
Again, the appellants have every right to preserve that argument were they to pursue it further.
But we're simply saying the jurisdiction of this board begins and ends with the letter of the zoning code itself.
So, you know, with that, we don't really have any additional information to provide.
You know, with that, we don't really have any additional information to provide. I do want to note, you know, we did join in the motion for reconsideration on a couple grounds. First of all, we ourselves were not entirely clear what the meaning of the board's original vote was.
the vote as recorded was yes, but this was an appeal against L&I, and it's not clear what yes
means in the context of that kind of appeal. I mean, typically it would be yes to a variance
or variance approved or something, but in the appeal against L&I, it wasn't really clear what
yes meant. I think, to be fair, I think we're all under the understanding at this point that the
bore that the board's intention was to um to grant the appeal but again it was just we we did want
the additional clarification of what the board's vote was and and as i said to the extent that the
board did intend to grant the appeal at the first hearing we believe that as a legal matter the board
had no authority to do that uh given the letter of the code and the lack of any um any actual
evidence or challenge that the LNI's approval was improper at the time, and the board's lack
of authority to invalidate the written letter of the code. We did not join with respect to the
timeliness, and the only reason for that is because we have no idea whether the permits
were properly posted. I have no reason to doubt Mr. Whelan or his client that they did in fact
post the original zoning permits in a timely manner, but we don't go out and check that.
That's just something that is the applicant's responsibility.
You know, the zoning permits are supposed to be, by-right permits are supposed to be posted within five days.
It's assumed that that happens unless it comes up otherwise.
And again, the lack of posting itself just goes to the timeliness.
So again, we don't, we're not opposing that aspect of the reconsideration request.
It's just that we don't have a position on it.
We don't know whether it was posted or not.
We assume it probably was, but we don't have any witnesses and wouldn't be prepared to present any on that.
We'll let the board decide that question.
So that's basically it.
I mean, you know, again, I'm here with Ms. White.
We're here to answer any questions about the legal issues in this case.
but but we do think that ultimately you know if there is a challenge to the proposed use the
challenge lies somewhere else than this board thank you does the board have any questions for
mr reuter no