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