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This case has been withdrawn.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