civus
Hearing video

ZBA Hearing - December 20, 2022

Philadelphia Zoning Board of Adjustment (ZBA)Dec 20, 20221h 0m

the board ruled in any of those individual cases i do know that in that there were occasions when

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the board did preclude the appellant from introducing new grounds so but again the main

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issue here at least for the city is not a due process issue for us I think Ms. Verlager might

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have a due process issue to raise our our issue is that because the issue is now being raised

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front and center our problem is that you open the door wide open to people just arguing well why is

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or even a 30-day notice of appeal in the first place you know like when building take building

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permits for instance building permits are not public record we do not release building permit

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records and plans because of security issues and copyright issues uh we don't do it uh but if

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somebody like two years from now discovers you know building plans for a property are they going

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to be allowed to say well you shouldn't have issued this building permit because this thing's

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not measured right or not permitted. It's not two-hour rated fire door under the IBC. That's

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the whole point of the 30 days notice of appeal is you have 30 days to figure out what you think

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is wrong with the project. And again, in the intervening year, anybody could have asked for

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these documents. The CDR stuff is different. I don't know anything about the right to know

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request for the CDR documents other than the fact that they were made. I am not aware of any right

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no request for the zoning permit documents themselves per se and nobody asked me directly

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so uh and i think probably miss ferlinger has more to say about the due process issue

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okay thank you uh for uh murder mr chairman uh just good morning uh to the extent that it's

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necessary i would of course just put on the record that i do represent matthew manor llc

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which is the property owner. And they, of course, will be making an explicit request to intervene

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in this appeal. Given that we're making arguments today, I figured I should at least get that on

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Given that we're making arguments today, I figured I should at least get that on the record.

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the record. Okay.

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I would also explicitly join in Len and Mr. Reuter's arguments.

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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.

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This case did not involve civic design review.

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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.

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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.

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um similar similar to some of the points that Mr. Reuter made as an administrative appeal against

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L&I this board should apply its discretion here carefully to protect the rights of the property

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owner which is explicitly what the zoning code requires as the board states regularly every case

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should be reviewed independent of the facts and circumstances of other cases that may have been

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before this board in the past. So even if this board did elect to create a policy that would

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allow for some form of amendment in a variety of different cases, this board would still be tasked

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with reviewing each one of those cases independently under that stated policy.

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The councilman here would ask this board to treat him akin to an unsophisticated neighbor

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in a standard variance case that this board hears every week. However, similar to the point that

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Mr. Reuter raised when he said that appeals against L&I are categorically different,

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the board should also consider that this councilman is also an attorney and has been in office for

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many decades. This is not the first zoning case that he's been involved in. And in fact, he has

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been so substantially involved in the zoning process during his time in office that there's

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precedential case law that has been created through some of the cases that he was involved

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with. So the board should take that into consideration as it is reviewing these issues,

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because this is not akin to a case like Mr. Whalen suggested, where the board would essentially be

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depriving a neighbor of some, you know, arguable right that they have before this board.

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Now, these appeals, as both Mr. Whalen and Mr. Reuter noted, were filed early 2022,

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which was close to a year ago. The specific determination on which the councilman filed

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his appeals were the issuance of two different zoning permits, a lot line relocation permit,

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and then a corresponding new construction zoning permit. Now, I'm a little bit confused by Mr.

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Whalen and Mr. Reuter both seeming to suggest that it would take months for plans to become

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available because typically once L&I issues a permit through Eclipse, it finds its way

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on Atlas within a few days of permit issuance. So this is where the zoning code is explicit

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that an appeal against LNI should state very specifically the grounds for that appeal.

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And in this case, where the councilman is alleging an error, we would submit that he did have full

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plans available to him at the time of his appeals, or at least at the very least, even if he could

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establish that he did not have access to them at the time of the appeal, which we would challenge,

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he certainly would have had access to them shortly after filing the appeals.

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So although the councilman could conceivably glean additional support for his appeal

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through some right-to-know request or other acquisition of documents, this board should

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not permit him to amend his appeal to add additional bases or alleged errors that would

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have been plain if they existed from a reading of the plans at the time that they were issued by

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L&I, which we submit would have been within a few days and at the most, maybe a month later.

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Respectfully, a common practice for applicants or appellants to be lax in their appeal documents

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does not excuse failure to abide by the explicit requirements of the code.

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We would also submit that the Councilman's alleged errors

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fail on their face to fulfill the obligations of Section 14.3.

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fail on their face to fulfill the obligations of section 14303 15a.3 by failing to state with

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specificity his grounds for appeal. The alleged additional errors are stated broadly, and they

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use such terms as not in compliance with or has discrepancies regarding. But none of these

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additional grounds for appeal state specifically or identify specifically any aspect of either of

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these zoning plans that he alleges are in error. As Mr. Reuter also alluded to, while the councilman

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has argued that it would violate constitutional rights for this board to deny his right to amend,

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we would conversely argue that it would violate the property owner's right to due process and

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fundamental fairness to entitle an appellant to amend their appeal after the passage of such a

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significant amount of time. The councilman simply cannot argue that he's been deprived of some

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right or notice of waiver given that the code is explicit. The code specifically requires

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that grounds for appeal be stated specifically in writing. We would also agree the board has

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wide discretion. However, even if the board were to find some ambiguity in the requirements

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surrounding an appeal against L&I, the rules of statutory construction would require that

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that ambiguity be resolved in favor of the property owner. In this case, in light of all

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of the additional arguments presented, the board's exercise of discretion here to grant the

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councilman's right to amend would be an affront to the code's clear intent to be construed in a light

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most favorable to the landowner. Finally, just on a technical aspect of this request,

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we were prepared to present argument to the board establishing that the appeals were in fact

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untimely, which we submit is entirely relevant to the board's determination of the councilman's

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ability to amend his appeals. If the board were to determine that the initial appeal was untimely,

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then it would follow that there's no right to amend that appeal.

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Now, conversely, should the board entitle the councilman to amend based on all of the arguments

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presented today and the briefs that all counsel will submit, we would submit that the board

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should essentially grant the right to amend without a waiver of the board's discretion

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to later find the appeals untimely overall once we do have full argument here on the

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merits of the case.

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Thank you.

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So, thank you to all three.

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Um, I, I, where we're going to be with this is we'd like, uh, briefs by 1-6-23.

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We'll make a decision before we have a resumptive hearing on this so that this issue will be

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handled before we actually have the case.

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Does any of the attorneys have any questions?

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Uh, no questions other than I suspect that email, uh, emailing of the briefs is acceptable

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to everybody.

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Hillary, we're fine with that, right?

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Yes.

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Correct.

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correct please email them to myself and um executive director sunkett thank you the only

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question that i have is is uh again i guess the person um making the mo the motion if we will and

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i i'm fine with the board considering this in effect a motion to amend uh the notice of appeal

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to add additional grounds um typically that would be a motion and then a response like we would get

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an opportunity to uh and i understand if you don't want to do that that way you just want

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everybody to get the briefs in at the same time but uh i just i just wanted to clarify that

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if you could clarify what do we want to do with that um we i mean we could have one uh have mr

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whalen's brief do one week and then have the briefs of the other parties do the following

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week if you would like to do that i mean the parties did today um orally brief um their

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positions so i think it would be possible for all parties to reduce all of this to writing by the

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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

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same day okay chairman if i may i have a personal request i am away the week leading up to the 6th

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So I would just ask if nobody else objects that we do the 13th instead of the 6th.

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no objection cancel that's fine okay fine fine hillary we're okay with that that that's totally

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No objection.

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Cancel?

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That's fine.

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Okay, fine.

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Fine.

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Hillary, we're okay.

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fine mr chair thank you very much miss emerson thank you chair all right thank you all three

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for coming in thank you all and thank you very much happy holidays everybody okay thank you

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is there anyone in the virtual audience who has any questions about their cases today

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i see no hands up in the audience okay thanks everyone

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thank you have a good day

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