Thank you.
Okay, Chair, we have 14 attendees, and we can start when you are ready.
Thank you. Good morning. My name is Bill Bergman, and I will be chairing this morning's EBA hearings.
With me is Ismail Shahid, our board secretary.
Present, Mr. Chairman.
Thomas Holliman, our board member.
Present, Mr. Chairman.
Our board attorney, Hillary Emerson, and also Lakeisha Dandy, our ZBA hearing supervisor.
Before we begin, here's our virtual format. Be advised, the proceedings are being recorded.
By participating, you acknowledge your agreement to be recorded. A video will be available by contacting tonyasunkett at philip .gov.
For the benefit of our court stenographer, we ask attorneys and witnesses to identify themselves before it testifies.
Three, if you're participating by phone, if you wish to testify, press star nine to raise your hand and star six to unmute.
To enter an appearance statement, call 267 -270 -5548.
Leave your email and the address of the property in question.
And finally, the question answer box on the screen is not for comments or testimony.
Any comments should be directed to our executive director, Tanya Sumter.
let's look at the continuances that we have for today number one MI 2022 001 644 448 to 52
wrong street parcel d this case is continued all right Mr. Chair you cut out on the the address
Can you just read the address on that one again? Sure. MI -2022 -001 -644 -448 -52 -Rawne Street,
Parcel D. This case is continued. Number three, MI -2022 -003 -825 -3929 North 17th Street.
This case has been withdrawn. Number five. MI 2022 -002 -549 -3460 J Street. This case has been
continued. Number six. And Mr. Chair, we can announce the new date for that one.
The new date for that one is February 1st, 2023 at 3 .30 p .m.
Thank you.
Number six, MI 2022 -005 -267 -2314 Delante Street.
This case has been continued due to an administrative error.
Number seven, MI -2022 -001 -344 -5850 -Kembell Street, this case has been continued.
Number eight, MI -2022 -003 -075 -2050 -Welsh Road, this case has been continued.
Number nine, MI -2022 -001 -637 -518 Hartel Avenue. This case has been continued.
Number 10, MI -2022 -002 -947 -340 Domino Lane. This case has been continued to Wednesday,
January 18th at 3 .30 p .m. Number 11, MI 2022 -001 -642 -448 -52 -Rawne Street. This case has been
continue. Number 12, MI 2022 -003 -467 -3173.
003 -467 -3137 Willits Road. This case has been continued due to an administrative error.
And number 13, MI 2021, 004 -544 -4900 Reno Street. This case has been continued,
attorney moving party. Is there anyone who has comments relative to cases that have been
continue. Good morning, Mr. Chair. This is Darlene Blakey. I'm your co -host today. I have a hand on Whelan.
Sure. Hold on, Mr. Chair. Before we go to Mr. Whelan, can we speak with Mr. Anastasio?
He also has his hand raised. So bring Mr. Anastasio first. Yes. Mr. Anastasio.
good morning Mr. Chair hi could you state your name and spell please for the court report
sure it's Vern Anastasio A -N -A -S -T -A -S -I -O I'm representing in this capacity Miss Nakia
Peterson on the Kemble Street matter okay do you swear for him to tell the truth the whole truth
nothing but the truth? I do. MI 2022 -001 -344 -5850 Kimball Avenue. Yes, sir. I would like to
withdraw the appeal. Okay. MI 2022 -001 -344 -5850 Kimball Avenue. That case is withdrawn. Thank
you, counsel. Thank you. Who else has their hand up? Mr. Sean Whelan. I'm going to allow him to
call? Yes. Mr. Whalen, can you unmute? Yes, hello. This is Sean Whalen. Sean, could you state your
name and spell for the court reporter, please? Certainly. Sean Whalen, W -H -A -L -E -N. Do you swear
or affirm to tell the truth, the whole truth, nothing but the truth? Yes, I do. Proceed. Which
case uh yes so there are three associated cases all brought by councilman o 'neill yeah i am
representing councilman o 'neill two of them you already stated were continued unless i missed
anything which were 448 to 52 ron street and 518 cartel avenue yeah the parties have also agreed to
to continue 451 Ron Street, which is the third of the three.
Well, that's the one.
So what we're going to do is when we call that, Sean, we're going to have some opening
remarks, right?
I just wanted to make sure we weren't doing the continuances separate.
So I think what we're going to do with that is we're going to have opening remarks and
we're going to make that a result of hearing.
OK. OK. All right. Stay on. Is there anyone else in the audience that has their hands up?
I see no more hands. All right. So I'm going to go to case number two.
MI -2022 -001 -641 -451 -Rawne Street, and case number four, MI -2022 -001 -638 -451 -Rawne Street,
Sean Whalen, Leonard Reuter, and Meredith Ferliger.
Did I bring them back in as it, bring them all in now as a panelist?
Yes, yes, please.
Thank you.
Hey, Sean.
Y 'all should be in as a panel.
So Mr. Whalen has been sworn already.
Leonard Reuter and Meredith Verlager.
Why don't I swear both of you at the same time?
You both state your name and spell for the court reporter.
Meredith Verlager, F -E -R -L -E -G -E -R, 1500 Market Street, Suite 3500E.
Mr. Reuter?
Good morning.
May it please the board, Leonard F. Reuter, R -E -U -T -E -R, Senior Attorney for the City of Philadelphia.
Right.
Do you swear or affirm to tell the truth, the whole truth, nothing but the truth?
Meredith?
Okay, thank you.
So we're going to start this just with some opening arguments.
opening arguments. Sean sent an email yesterday and there was a couple of responses to it.
Sean sent an email yesterday, and there was a couple of responses.
So I think we'd like to hear testimony from Sean on that. Meredith and you and Leonard will both
have a chance to respond to that. We're not going to vote on that issue today. In fact,
what we're going to do is ask for memos of law that will be due on the 6th of January. So you'll
have some time to get it in because of the holidays. So Sean, why don't you start?
Certainly. Thank you very much, Chairman and members of the board. As I understand it, you can tell me if you want more or less. Opening remarks today will be limited only to the ability of the councilman to amend his written notice.
of absolutely absolutely yes okay so so i'll be speaking today the councilman uh absolutely has
a right as done as does any applicant to amend his or her or their notice of appeal and to add
additional grounds for appeal um this is unequivocal it's been followed uh routinely by
this board over the decades. And while the ZBA could promulgate rules about how to formally or
informally this can be done and timing for when it is allowed or disallowed, there are no such
rules at this time. There is literally no authority in Pennsylvania law under statutes, codes,
or case law regarding the amendment of an initial application to an agency of either the state or
this city. In fact, the only reference which the ZBA cites to in its emails referenced yesterday
is a reference in the zoning code. There are actually no references from the ZBA rules or
regulations from 2015. So the only reference in the zoning code is, quote, all appeals must be
filed through a written notice of appeal stating specifically how L &I's decision is inconsistent
with the requirements of the code. There's no dispute that that was done here. The councilman
filed a written notice of appeal, timely, stating certain specific reasons for noncompliance.
However, he, as most applicants have to, and the issue here is much larger than just the councilman and this case, this rule, whatever this board decides, has to be applicable to all applicants that come before and protestants that come before the board.
So the councilman had 30 days to file an appeal. He did so with little to no information, no plans, no background documentation, and no attorney. So he submitted what he could based on what he had at the time.
um there there is nothing sacred or sacrosanct about a written notice of appeal it's a single
form and a uh an investigation through this board would show that most of them are barely filled out
uh with any you know any information let alone detailing every item that would have to be raised
Again, and even more poignantly, this issue revolves around waiver. This is a very serious issue, a constitutional issue that is raised time and again and is applicable in the court system. And that is sort of what's trying to be analogized here. However, the court system is not analogous here whatsoever for reasons that I'll get into.
And most specifically, there is no code provision, no rule or regulation, no statute or anything else informing an applicant or a protestant that they waive or will waive or could waive any or all of the issues that were not raised in a written notice of appeal.
Without that notice, I would posit that it's unconstitutional to have any kind of waiver without, again, without the applicant or protestant being on notice that they could waive something by not doing something in advance.
and again proceeding before the zba or any other agency in the state or city is not analogous in
any way to appeals in court in court there are explicit rules that provide notice for and bases
for waiver there's also already has been a full and complete process trial discovery to create a
record and to get all the issues out on the table. None of that takes place in an agency.
So really the only analogizing that you can do is that this is technically called an appeal
this is technically called an appeal, and so is what happens in court. And it should be noted
and so is what happens in court.
that in court, you can actually amend throughout the entire process, that whole process that I
just laid out, you can either amend by right, or there are rules by which you can amend with
leave of court. So it is only once you get a full and complete record that you are allowed to amend.
um so here therefore there's no authority to fall back on for this board the board must rely
therefore on the fundamental basis for notice requirements and principles of equity that
govern all legal and quasi judicial and all quasi judicial uh pleadings and actions like we have
today so why is notice required notice is a to let everyone put everyone on notice of what's
happening, give everybody advanced information as to what's happening, that a case has been
brought against them. And two, to make sure that there's no prejudice through surprise to any of
the parties about what is going to be argued. Neither of those are at issue today. Any decision
today, as I said already, but really needs to be highlighted, any decision today or in this
matter with regard to this, regarding the councilman, must be equally applicable to
all applicants and protestants, sophisticated corporate entities, individuals, homeowners in
the city. And the question really is, would this board prevent an individual neighbor from raising
serious issues on appeal because she or he didn't raise them in the notice of appeal? And is that
really the fundamental fairness and equity that we're looking for from this board and its
discretion? The answer is clearly no. Rather, this board has a very long precedent of allowing
additional grounds for appeal, especially at a first hearing, sometimes less or so as hearings
continue in an individual matter. And what the board has done in all of those cases that I'm
aware of, is offered any party that may be subject to prejudice based on a new issue
and appeal being raised additional time, either via hearing or legal briefs, to respond to
this issue.
So the fundamental principle here is the board is looking to get all of the issues out on
the table and find out, is there an underlying issue or problem that has to be addressed
and should does it have all the information to make the best decision in that individual appeal
that prejudice can always be negated by additional time or other concessions by this board to those
applicants here has actually mr reuter raised yesterday given the fact that the parties are
agreeing to continue the case due to the unavailability of certain city witness any
issues of prejudice or surprise are moot, and no party is subject to any prejudice because there
will be ample time for any and all parties to respond or deal with whatever issues there were
raised. Now, it should be, and I will get into this more in a second, it should be noted the
councilman does not raise, is not even trying to raise issues here that are coming from new
documents that have been created or any kind of surprise documents that have not been shared
among the parties. Rather, the councilman, as has been the process, tries to informally amend the
notice of appeal. This board has never required it in the past. However, we could, and this board
may decide that it wants a formal notice of amendment or notice of of appeal amendment
you know in writing to all parties that has always been determined to be an onerous burden
and you know for these hearings that obviously the board chair knows well continue at a very
rapid pace every single day with new arguments and issues being raised all the time so regardless
of the issue of mootness, if we look at the facts here, the facts warrant the councilman
being allowed to, as a matter of equity and principle, amending his issues. The zoning
permit was issued December 19 of 2021. It was appealed timely on January 18, 2022. Notably,
that's over the holidays again here, where it's not possible to get all the documentation,
It's not possible to get all the documentation, talk to any of the people that you may need to do to ferret out any or all of the issues that could be raised, let alone for a sitting councilman to be able to hire outside counsel to assist him in the filing of the notice of appeal.
talk to any of the people that you may need to do to fair
No documents at any point in time were uploaded to the Atlas, the city's Atlas website until recently.
Everyone knows that the Atlas website, while spectacular and a huge step forward for the city, takes a long time to be updated, and there's no notification of when it is updated.
So it's not known as to specifically when the documents came up, but they were not available at the time the notice of appeal had to be filed.
In order to get the city documents, the councilman had to file a right -to -know request to the city.
I mean, as bizarre as this sounds.
the city actually declined to provide any documents and told the councilman he would
not be provided anything. The councilman then had to appeal that decision on the right -to -know
request and won. However, the city still produced virtually nothing in response to the right -to -know
request. Therefore, the councilman filed a second right -to -know request but received no response.
This all happened over this past late spring and into summer.
Finally, we get to now.
Yesterday, at 9 .11 a .m., the city produced its complete file in advance of this hearing.
Now, I understand Mr. Reuter's position, which technically I agree with, given the sort of strange circumstances that we find ourselves in.
The city's position is they don't even have to and are not required to produce that complete file. They actually did it, and I thank Mr. Reuter for doing so, as a professional courtesy to Ms. Verliger and to myself and arguably to the board.
but there there's an odd you know tangential issue here where the zba rules and regulations
from 2015 were in place we all know that covet hit and hearings went to zoom and so forth and
emergency regulations were put in place and signed by mayor kenny they were extended however they
have now timed out and so there are quite literally no rules or regulations in place at this time
covering ZBA Zoom hearings. Setting that aside, and again, I thank Mr. Reuter for not relying on
that and instead producing the city's complete record. I began on behalf of the councilman to
review the complete record, again, the first time we had it. Yesterday at 11 .55 a .m., I sent out a
list of additional grounds on appeal. These are grounds based solely on the face of the documents
from the code sections that are, you know, used every day.
Less than two and a half, you know, I guess just over two and a half hours later.
So certainly with no delay and no intention to surprise, because I could have just waited
until today when we were, you know, all anticipating going to hearing, and I could have raised
those issues on the fly.
the developer and the city both quickly and immediately objected to my rate the councilman
raising new issues and the zba attorney stated in an email that only in an extraordinary
circumstance will new grounds on appeal be allowed citing to that requirement of the code
the only provision of the code relating to the situation that simply says the notice of appeal
a written notice of appeal must start the appeal. There's no discussion of amendment. There's no
discussion, and even more specifically, there's no discussion of not allowing an amendment.
Therefore, any amendment would be by right and must be by right under constitutional due process
arguments. So again, to be clear, the councilman is not raising any issues regarding anything
that's not already in the city's possession and in the developer's possession. The irony here,
as in all cases, is the developer with whom I'm usually representing and the city have all the
documents and the person trying to protest the issue has none of the documents. And as Mr. Reuter
points out, no entitlement to the documents. And given the way the city websites are updated,
no ability to get the documents. So this issue also, the board may recall, and I know Mr.
Reuter recalls, this issue also arose last summer in a case brought by
This issue also arose last summer in a case brought by Council President Clark, and he was found not to have waived issues that were raised mid -hearing, new issues.
So it was quite surprising to me to hear that only in an extraordinary circumstance may we today find this.
And I'm sure that Mr. Reuter and Ms. Verlager and their experience, maybe even in more cases than me, have found numerous instances where the board has allowed new and substantive arguments to be raised mid -hearing by protestants, by applicants who are challenging a permit.
And again, the board has always, in every instance, offered me and my client additional time to respond, a briefing if I wanted it, to undo any potential prejudice, but as a matter of equity allowed it.
So, to conclude, while the facts I've already outlined and set forth provide any necessary background for the, quote, extraordinary circumstances that board counsel is arguing are applicable here,
um you know the councilman is allowed as a matter of right to appeal uh for all the reasons i've
already set forth and and most specifically simply because uh you cannot waive something
unless you are told that you were will be subject to waiver that is a fundamental principle of
pennsylvania law um now again the board can promulgate any rules surrounding amendment that
it wants, but there are none in place at this time. Not any that are vague or old, just none
whatsoever. So finally, this issue, as I said earlier, has to apply not just to the councilman
in this case, who clearly satisfies any requirement that could possibly be thrown up in his way,
but to every party. And we all know that most parties in front of and Protestants in front of
the zoning board are not necessarily sophisticated real estate parties. They are individuals impacted
simply because a developer wishes to build something in their neighborhood. And they
likely don't have the means to hire an attorney to represent them. So what happens here if the
board allows amendment? The board can determine how that amendment should be allowed and when.
The board determines if there really and finds out if there really is an issue with the underlying approvals and permits, which is really the fundamental basis of why these appeals are allowed.
And there's no prejudice to the parties who have full and extended time to respond with notice of all of the arguments and can have, and I certainly would not object to, briefing or additional hearing time, whatever they need to respond to those arguments.
The issue is just trying to get them on the table.
And again, this is not analogous to a court because this is the first hearing.
This is the first time to make a record.
This is the first time to ask any questions.
If I'm not allowed to amend, then I have to start asking questions of the city witnesses going piece by piece through documents I don't have, so through the code, asking them, did you consider X? Did you consider Y?
And as Mr. Reuter's position has been, I assume still is, and has been in prior cases that we've been in, which I think is a valid position, is that the councilman here and I, in other cases, bears the burden of showing an error as a matter of law on behalf of L &I.
And it's not until I can show that error that the burden then shifts to the city to respond and support its actions.
So as Mr. Reuter has, on behalf of the city, and I think correctly, taken the position in the past, that the councilman here would not actually be entitled to ask any questions of the witnesses.
So in what sense would you be able to even presumably make a claim or a protestation to an appeal where the permit is issued, the councilman gets no information, no documentation, the city is not required to provide any documents, and he's not allowed to ask any questions.
and if there's any issues that he hasn't already set forth that that is not an equitable or just
system and I'm sure the board agrees with that so the the final point I would make is
what happens if the board disallows amendment of a notice of appeal not just in this case but in
all cases going forward essentially what you will have and I will put myself in this category and I
essentially what you will have, and I will put myself in this category, and I assume Ms.
Ferliger would too, because she represents the same people I do. We would develop and submit
20 plus pages for notices of appeal to cover every possible basis that could even potentially arise.
And the board would just be inundated with these. I see Ms. Ferliger smiling. I mean,
is what I was thinking through last night. I would. I would submit a 20 -page memo to the board
about the notice of appeal in every single issue that could possibly be raised because it would
frankly be malpractice for me not to. And the converse of that, which I think is even more scary,
is that any lay person who either can't pay for a lawyer or hasn't realized they need a lawyer
would either have to retain a lawyer within 30 days to get this 20 -page notice of appeal that
I'd be filing, or they would waive every potential argument because they didn't properly fill out a
form. And again, fundamental fairness is this is a function over form practice. And just because
an individual neighbor. Today, we're talking about Ms. Verliger ably representing her developer,
me, hopefully ably representing the councilman, and Mr. Reuter ably representing the city.
Tomorrow, this board could face the same situation with no attorneys involved and only lay
applicants and protestants. And the rule that is determined about the amendment here
has to be equally applicable in both situations.
Thank you very much.
A quick follow -up.
What you received yesterday at 9 -11,
what was in there that was a complete surprise to you?
So I don't want to say,
I don't want to suggest to the board
that there was anything that was a complete surprise,
but I previously had one copy of a plan
that had been produced by Ms. Verliger
uh there were four copies of that same plan in the city's record uh there were streets reviews
from the city um there were i mean about 25 20 25 documents i think mr reuter uh can correct me if
i'm wrong i don't have it up in front of me um okay previously i i had almost none of that right
and then and then i guess the memo that you sent to uh hillary yesterday the comment about
B, the fact that the councilman, here it is, the fact that the councilman seeks to introduce
no new evidence. Explain that. So certainly. So I would actually agree with the premise that I
could not, mid -hearing, bring up new documents that I haven't told Ms. Verliger or Mr. Reuter
about and suddenly say, oh, well, we have this new document and say it's a whole page
of calculations.
And I raise that up and I say, oh, well, now, Mr. Reuter, wouldn't you agree that the
calculation should really be this?
And he suddenly gets forced with a giant page of calculations.
Now, maybe he could respond on the fly to that.
You know, I know I couldn't.
So that's the surprise aspect.
What I was raising in the point is that the councilman here is not raising issues based on any new documentation or surprise documents. He's raising issues relating to documents that have been at all times in the possession of both the developer and the city, but not necessarily publicly available and not in his possession.
So there's no surprise. The only, quote, surprise that could be is that, say, you know, I raise an issue with regard to the parking, and in the notice of appeal, the councilman raised issues with regard to landscaping and commercial viability.
But again, the only issues I raise are specific to the code provisions following through in an analysis of the plans that were presented to us yesterday.
Okay. Thank you. Mr. Reuter?
Hi. Either I could go next or Ms. Farliger could go. It's fine with me.
So I think at the outset, I believe, you know, Mr. Whelan is protesting a bit too much.
First of all, this is an appeal against LNI, which is categorically different from an appeal,
which is really for a variance or a special exception, we call those appeals, but they're
not really appeals in any normal sense of the word. When somebody seeks a variance or a special
exception, typically, and this is why you ask at the very beginning of every message,
And this is why you ask at the very beginning of every matter is, do you waive the reading?
And what that means is that you are asking applicants who are seeking a variance or special exception whether they are challenging the refusal.
In other words, are they saying, no, L &I, I don't need a variance. L &I is wrong. That's what challenging the refusal is.
that would be an appeal against l and i where they're alleging a mistake and in cases like that
where they had not previously uh noted that they are challenging the refusal uh and it turns out
that in fact they are alleging error on the part of l and i in a variance case if i'm informed about
it or the law department's informed about it we will ask that matter be continued because that
would be the first time that we knew that somebody was challenging it but otherwise 90 probably 99
99%, I would say maybe one out of 100 cases before this board is a challenge against L &I.
There have been a lot more of them in recent years.
Some years have gone by when there's been no more than half a dozen.
So this is a categorically different type of case.
This is an actual appeal of a decision that was made by L &I.
This is not, again, a variance case or special exception case, which is really more of somebody requesting that the board grant a variance because there's a hardship or something like that.
Nobody is suggesting that persons who are seeking a variance or special exception are restricted to the reasons they write on their notice of appeal.
I mean, they might be. There is an argument that that should be true.
That's why you have those big blank spaces in the old paper forms and why you're given ample opportunity to list your reasons for why you think there's a hardship in your notice of appeal or now your application.
In fact, they call it an application for appeal to the zoning board on those cases.
So I just want to clarify that I'm not addressing, we're not addressing the issue of people seeking variances or special exceptions.
We're talking about instances where there is an action that was taken by the Department of Licenses and Inspections to issue a permit, because again, with the exception of challenges to refusals, virtually every single appeal against L &I is an appeal brought by a third party who is opposing the decision to grant a by -right permit.
it um it's been our position and i'll say it uh because i believe it to be true 99 of these
appeals are frivolous they are simply intended to thwart development or to stop something from
happening uh and as this case amply demonstrates and we've seen it in many instances before
it is an appeal in search of a reason to file the appeal the appeal was filed
um first of all i mean i in in this instance uh again the council person the council member was
well aware of the circumstances behind the development of this property i myself attended
meetings uh with the uh was asked to attend meetings of the um registered community organization
uh regarding these projects uh that the council member was present at where the where an l and i
plans examiner was present and the matter was discussed this was
end of december i believe it was uh yeah in fact i think it was just before uh christmas
uh eve uh of 2019 yes no well whenever it was 20 2021 so anyway the point yeah sorry but the
point being is that so i mean that's that's all as an aside i mean because again that
what what's been demonstrated uh by this request is that in fact when the appeal was filed
there were no grounds to file the appeal by mr whalen's logic there should never be a time limit
on filing an appeal and in fact we do disagree and we'll brief this since i understand the board
is asking for briefs the courts have addressed this issue and the reason is that it's not simply
a due process issue per se, it is a late appeal. That is why you cannot add additional grounds
later. You have 30 days to file a notice of appeal. And as the board's counsel had pointed
out, there is a code provision in the zoning code specifically addressing that you must raise your
grounds for appeal at that time. It is not true that this board has always allows persons to
raise grounds for appeal later in appeals against lni yes it's true last year or so
the council president was permitted to well
was permitted to, well, council president's attorney was allowed to raise some additional
council
issues, and the board allowed it. But we objected, as did Mr. Whelan at the time. So because, again,
there is a notice issue. Now, that being the case, the new arguments that were raised in that matter
were primarily legal arguments. They didn't involve factual disputes, to the best of my knowledge.
That case is, incidentally, I believe, still on appeal at the Court of Common Pleas.
I don't think, I don't know if they've decided or not.
So, but that case, you know, again, was appealed.
So, I mean, there are things that boards do that the city objects to, and we believe that something was a mistake.
And whether we decide to appeal on those grounds doesn't mean that we can't raise the issue later.
But again, the issue here is that raising additional grounds for appeal after 30 days have passed constitutes a late appeal, and the courts have repeatedly said that without any specific authority in their enabling legislation, administrative agencies, city boards, do not have the authority to allow late appeals.
This was decided several times at the Commonwealth Court level and Oliver versus Board of L &I Review, Graduate Hospital versus the Zoning Board, Radames versus the Tax Review Board, et cetera, et cetera.
So that's the issue.
The issue is that adding additional grounds for appeal long after the appeal deadline has passed is something the board can't do.
It's a it's a it's a they need permission to file Monk Protonk, which means they would have to go to the Court of Common Pleas.
I would also point out, too, that and again, Mr. Whelan can correct me if I'm wrong.
I'm not in the right to know unit of the city, but I am aware of right to know requests that were made for the CDR records.
And that was made. Those requests were made quite a long time ago.
I know that, again, this appeal was filed in January.
I don't know when Mr. Whelan got involved.
There have been numerous correspondences between myself, Mr. Whelan, Ms. Furliger, and then with boards council, as you know, this matter had been continued a few times, once at my request, and other times I believe there was discussion between the private parties that led to continuances.
This was originally, I think, going to be heard in June, I think.
Then it was scheduled for July, and then it got continued again a couple times.
And that's fine.
But going through our records, not once do I see a request from anybody to simply provide the zoning documents.
Mr. Whalen's right.
Normally, the zoning plans and permit would be on Atlas, and it doesn't take that long.
It usually takes two months.
But no, I already had them.
I have access to it anyway.
Um, so nobody had indicated to me, uh, or had made any request for anything prior to
this, uh, board's hearing.
So, and again, that being the case, you know, while I don't think that again, courts are
very clear that there is no discovery in administrative hearings.
There's no discovery process.
The board could create one and it might be a good idea to do that, uh, for purposes of
zoom appeals but the issue here is um as we pointed out uh it's the city's position uh and
it has been for some time that the emergency regulations that were uh instituted by the
and adopted by the zoning board during the covid pandemic emergency uh expired uh when the mayor
lifted the emergency now, I think, about a year ago. That being said, the city does not object
to the board proceeding under those rules, at least with respect to those rules that were
related to the conduct of virtual hearings, because we think the rules made sense.
A number of us worked on them, and one of the reasons why we put in provisions and discussed provisions to allow to have the board require people to submit documents beforehand was because we were using the model that had been set by the Planning Commission and the Historical Commission and the Art Commission,
where they had a single person who would corral all the documents
and then essentially either the host or some other person would then,
and the idea was that it would have a better flow.
But it was never intended to set up a new discovery procedure.
a new discovery procedure it was never intended that because again that would require a rule if
It was never intended...
there were a requirement that everybody produce documents and give people an opportunity to
respond to them that would require a rule if not an amendment to the code as far as the zoom
hearings go we are fully confident that the zoom hearings comply fully with all of the state
requirements under the public meetings law. In fact, we think they comply better than in -person
hearings because public participation is way up for all of the boards and commissions. We get much
more public comment and public participation, which is the whole purpose of the public meetings
law. So we don't have a problem with it. With that going forward, we do think that the board
can continue the practice that it's established since virtual hearings have been instituted.
But anyway, getting back to the main issue here, again, it's our position that ultimately
the problem here is that it is a late appeal.
Every argument that Mr. Whelan made about it's not really prejudicial, you already had
these documents, we didn't have access to them, et cetera, et cetera.
I mean, city issues, code violation notices hundreds of times a week, if not thousands of times per week. A number of people that get those violations take appeals to the Board of L &I Review, notwithstanding the fact that the Board of L &I Review also has a procedure for virtual hearings where they're asked to provide documents ahead of time.
In no case to unless they had made a request beforehand, which we would consider in no case to appellants who have code violations, they're actually getting fined or maybe under threat of a cease operations or stop work order.
In no instance are they allowed to simply bring in new grounds for appeal at the last minute. The Board of L &I Review, which hears appeals like this every time they meet, leaving aside the gun permit cases, anytime they're hearing code violation notices, people don't raise new grounds for appeal.
And the Board of L &I Review is consistent in not allowing that. And again, I don't believe this board has never enforced that rule. And again, in appeals against L &I, which are different from variants and special exception cases, we have always in the past objected to the introduction of new arguments.
um again i i their their cases you know again going back uh several years before the pandemic
uh involving projects on let's see on south street uh 24th street 21st street uh 2100 hamilton
um you know there are a number of instances uh where we have objected and i don't recall what
the board ruled in any of those individual cases i do know that in that there were occasions when
the board did preclude the appellant from introducing new grounds so but again the main
issue here at least for the city is not a due process issue for us I think Ms. Verlager might
have a due process issue to raise our our issue is that because the issue is now being raised
front and center our problem is that you open the door wide open to people just arguing well why is
or even a 30 -day notice of appeal in the first place you know like when building take building
permits for instance building permits are not public record we do not release building permit
records and plans because of security issues and copyright issues uh we don't do it uh but if
somebody like two years from now discovers you know building plans for a property are they going
to be allowed to say well you shouldn't have issued this building permit because this thing's
not measured right or not permitted. It's not two -hour rated fire door under the IBC. That's
the whole point of the 30 days notice of appeal is you have 30 days to figure out what you think
is wrong with the project. And again, in the intervening year, anybody could have asked for
these documents. The CDR stuff is different. I don't know anything about the right to know
request for the CDR documents other than the fact that they were made. I am not aware of any right
no request for the zoning permit documents themselves per se and nobody asked me directly
so uh and i think probably miss ferlinger has more to say about the due process issue
okay thank you uh for uh murder mr chairman uh just good morning uh to the extent that it's
necessary i would of course just put on the record that i do represent matthew manor llc
which is the property owner. And they, of course, will be making an explicit request to intervene
in this appeal. Given that we're making arguments today, I figured I should at least get that on
Given that we're making arguments today, I figured I should at least get that on the record.
the record. Okay.
I would also explicitly join in Len and Mr. Reuter's arguments.
And I did just want to point out that anything relevant to civic design review or any documents that would have been generated from a right -to -know request on civic design review would not in any way, shape, or form be relevant to this case.
This case did not involve civic design review.
That would be something that would come up during, you know, any hearing or argument on 448 RON or 518 Hartel. But Civic Design Review did not come to bear in any way on this case.
I have, as I mentioned, I would join in Mr. Reuter's arguments, but I do have a couple additional arguments I want to raise and I will be brief.
um similar similar to some of the points that Mr. Reuter made as an administrative appeal against
L &I this board should apply its discretion here carefully to protect the rights of the property
owner which is explicitly what the zoning code requires as the board states regularly every case
should be reviewed independent of the facts and circumstances of other cases that may have been
before this board in the past. So even if this board did elect to create a policy that would
allow for some form of amendment in a variety of different cases, this board would still be tasked
with reviewing each one of those cases independently under that stated policy.
The councilman here would ask this board to treat him akin to an unsophisticated neighbor
in a standard variance case that this board hears every week. However, similar to the point that
Mr. Reuter raised when he said that appeals against L &I are categorically different,
the board should also consider that this councilman is also an attorney and has been in office for
many decades. This is not the first zoning case that he's been involved in. And in fact, he has
been so substantially involved in the zoning process during his time in office that there's
precedential case law that has been created through some of the cases that he was involved
with. So the board should take that into consideration as it is reviewing these issues,
because this is not akin to a case like Mr. Whalen suggested, where the board would essentially be
depriving a neighbor of some, you know, arguable right that they have before this board.
Now, these appeals, as both Mr. Whalen and Mr. Reuter noted, were filed early 2022,
which was close to a year ago. The specific determination on which the councilman filed
his appeals were the issuance of two different zoning permits, a lot line relocation permit,
and then a corresponding new construction zoning permit. Now, I'm a little bit confused by Mr.
Whalen and Mr. Reuter both seeming to suggest that it would take months for plans to become
available because typically once L &I issues a permit through Eclipse, it finds its way
on Atlas within a few days of permit issuance. So this is where the zoning code is explicit
that an appeal against LNI should state very specifically the grounds for that appeal.
And in this case, where the councilman is alleging an error, we would submit that he did have full
plans available to him at the time of his appeals, or at least at the very least, even if he could
establish that he did not have access to them at the time of the appeal, which we would challenge,
he certainly would have had access to them shortly after filing the appeals.
So although the councilman could conceivably glean additional support for his appeal
through some right -to -know request or other acquisition of documents, this board should
not permit him to amend his appeal to add additional bases or alleged errors that would
have been plain if they existed from a reading of the plans at the time that they were issued by
L &I, which we submit would have been within a few days and at the most, maybe a month later.
Respectfully, a common practice for applicants or appellants to be lax in their appeal documents
does not excuse failure to abide by the explicit requirements of the code.
We would also submit that the Councilman's alleged errors
fail on their face to fulfill the obligations of Section 14 .3.
fail on their face to fulfill the obligations of section 14303 15a .3 by failing to state with
specificity his grounds for appeal. The alleged additional errors are stated broadly, and they
use such terms as not in compliance with or has discrepancies regarding. But none of these
additional grounds for appeal state specifically or identify specifically any aspect of either of
these zoning plans that he alleges are in error. As Mr. Reuter also alluded to, while the councilman
has argued that it would violate constitutional rights for this board to deny his right to amend,
we would conversely argue that it would violate the property owner's right to due process and
fundamental fairness to entitle an appellant to amend their appeal after the passage of such a
significant amount of time. The councilman simply cannot argue that he's been deprived of some
right or notice of waiver given that the code is explicit. The code specifically requires
that grounds for appeal be stated specifically in writing. We would also agree the board has
wide discretion. However, even if the board were to find some ambiguity in the requirements
surrounding an appeal against L &I, the rules of statutory construction would require that
that ambiguity be resolved in favor of the property owner. In this case, in light of all
of the additional arguments presented, the board's exercise of discretion here to grant the
councilman's right to amend would be an affront to the code's clear intent to be construed in a light
most favorable to the landowner. Finally, just on a technical aspect of this request,
we were prepared to present argument to the board establishing that the appeals were in fact
untimely, which we submit is entirely relevant to the board's determination of the councilman's
ability to amend his appeals. If the board were to determine that the initial appeal was untimely,
then it would follow that there's no right to amend that appeal.
Now, conversely, should the board entitle the councilman to amend based on all of the arguments
presented today and the briefs that all counsel will submit, we would submit that the board
should essentially grant the right to amend without a waiver of the board's discretion
to later find the appeals untimely overall once we do have full argument here on the
merits of the case.
Thank you.
So, thank you to all three.
Um, I, I, where we're going to be with this is we'd like, uh, briefs by 1 -6 -23.
We'll make a decision before we have a resumptive hearing on this so that this issue will be
handled before we actually have the case.
Does any of the attorneys have any questions?
Uh, no questions other than I suspect that email, uh, emailing of the briefs is acceptable
to everybody.
Hillary, we're fine with that, right?
Correct.
correct please email them to myself and um executive director sunkett thank you the only
question that i have is is uh again i guess the person um making the mo the motion if we will and
i i'm fine with the board considering this in effect a motion to amend uh the notice of appeal
to add additional grounds um typically that would be a motion and then a response like we would get
an opportunity to uh and i understand if you don't want to do that that way you just want
everybody to get the briefs in at the same time but uh i just i just wanted to clarify that
if you could clarify what do we want to do with that um we i mean we could have one uh have mr
whalen's brief do one week and then have the briefs of the other parties do the following
week if you would like to do that i mean the parties did today um orally brief um their
positions so i think it would be possible for all parties to reduce all of this to writing by the
same by the same date again i'm not but it's your it's your call mr chair yeah why don't we do the
same day okay chairman if i may i have a personal request i am away the week leading up to the 6th
So I would just ask if nobody else objects that we do the 13th instead of the 6th.
no objection cancel that's fine okay fine fine hillary we're okay with that that that's totally
No objection.
Cancel?
That's fine.
Okay, fine.
Hillary, we're okay.
fine mr chair thank you very much miss emerson thank you chair all right thank you all three
for coming in thank you all and thank you very much happy holidays everybody okay thank you
is there anyone in the virtual audience who has any questions about their cases today
i see no hands up in the audience okay thanks everyone
thank you have a good day