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Hearing video

ZBA Hearing - August 7, 2024

Philadelphia Zoning Board of Adjustment (ZBA)Aug 7, 20246h 50m

There are no hands.

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Planning Commission.

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Hello, Keith Davis, City Planning

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commission um the comprehensive plan recommended that the site remain uh ca2 zoned uh nevertheless

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it was rezoned to ca1 in 2019 uh neither the existing nor the proposed zoning support the

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proposed personal auto care use however given the site's long-standing use as a shopping center

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and the orientation of the proposed use on the north side of the building facing abutting

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industrial lots no negative impacts are anticipated as proposed the planning commission recommends

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uh the planning commission recommends that the board grant the requested variance thank you

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that the board grant the requested variance.

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Thank you.

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mi 2024 000 314 9745 r east roosevelt boulevard i vote yes

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MI 2024.

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chel gaston my vote is yes mike johns my vote is yes

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Suneeta Graham, my vote is yes

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Taya Nguyen, my vote is yes

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James Snell, my vote is yes

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Ishmael Shahi, my vote is yes

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Thank you, counsel

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Thank you

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Number three, MI 2024

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000767

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1425 Marlboro Street

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Brandon Savage is the attorney

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also Verne Anastasio

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represents Protestants

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could both come on

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yes

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Brandon has been promoted

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Brandon

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could you

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state your name and spell for the court stenographer

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good afternoon

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members of the board

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could you state your name and spell for the court stenographer

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please

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Sure. I'm Brandon Saverin. That's spelled B-R-A-N-D-O-N.

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And then S as in Sam, A, V as in Victor, R-A-N as in Nancy, representing the applicants.

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You swear or affirm to tell the truth, the whole truth, it doesn't even put the truth.

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Yes, I do.

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And Mr. Anastasio.

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Mr. Anastasio has also been promoted.

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Good morning, Mr. Chair.

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Good afternoon.

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Counsel, you've already been sworn.

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Could you just state your name for the record?

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Sure.

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Vern Anastasio on behalf of Mr. Anthony Lolio, among others, neighbors of the subject property.

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Thank you.

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And Mr. Saverin, could you identify your client and their relationship to the property?

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Sure.

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My clients are purchasers under contract for the property, their husband and wife, named Stephanie Widener and Armin Gabriel-Ans.

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Okay. Mr. Saverin, our vice chair has a few questions for you.

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Okay.

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Good afternoon, counsel. Do you agree to wait to read another refusal or stipulate to its accuracy?

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Yes, I do.

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Have you emailed in all the required documents and exhibits that is needed to proceed with this case five days in advance of this hearing?

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Yes.

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Thank you, counsel.

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Were we swearing the other counsel in or no?

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I did. I swore him in already. You're good. You're good with him.

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Mr. Sabrin, just for a point of information, we have a letter of no position from Fishtown Neighbors, 25 in support, 25 opposed.

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That's correct.

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Please start your case.

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Okay. Thank you. And thanks, Mr. Vice-Chair. Just give me one moment to share my screen.

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Let's see.

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There we go. Okay. Okay. Hopefully you can see this rendering of the proposed project. Let me know if not.

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um so good afternoon again members of the board as stated i represent stephanie widener and her

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husband armin who are purchasers under contract for the subject property this is despite the

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beautiful image on your screen currently a paved parking lot and per our understanding from the

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seller it has been a paved parking lot for 50 years so it's a vacant lot they would like to

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build a home for themselves on this vacant lot. For over a decade, they have lived on the adjacent

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1300 block of Marlborough Street. So they are locals in the deepest sense of the word. This

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property is on the 1400 block. The goal of this project is to stay in their neighborhood while

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Stephanie, who has a spinal disability, can gain the ability to park at home. Their current home

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has no parking. So on that note, after I complete my presentation, Stephanie will adopt my testimony

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and will also make a short statement about her disability. And I would also like to reserve time

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to rebut any testimony that's offered in opposition. And because of all that, in the interest of time,

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I will not include our architect, Gabriel Deck, in our presentation, but he is on the line and

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available to address any design related questions that the members of the board

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may have. So what you're currently seeing on your screen is a rendering of

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So what you're currently seeing on your screen is a rendering of the proposed project.

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the proposed project.

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This is a part of the 15 exhibits that I submitted to the board in advance of the hearing, all of which I respectfully request to be moved into the record.

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Okay.

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Thank you, Mr. Chair.

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And I will now walk you through some, but not all of those exhibits.

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So let me start doing that.

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Exhibit two is our refusal.

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try and zoom in a little bit more and we go um so what you can infer from this refusal is that

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we are proposing to build a single family home on a vacant lot um as you saw in that rendering the

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the scale and mass of the home really is designed to perfectly line up with other homes on the block

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um the the dimensions of the structure and all of its qualities fully conform to the zoning code

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except for one item, which is the refusal given here. That item is that accessory parking,

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while a permitted use in the RSA 5 district, has to be accessed through a specific manner

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that we are not offering. So in the RSA 5 district, one must access accessory parking

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from a rear street, shared driveway, or alley, as many of you board members probably know.

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What I wanted to perhaps introduce that is new here is that at least two commonwealth court cases have suggested that even when L&I calls a refusal a use refusal, the more stringent hardship standard that is typically applied to use refusals should not apply when the refusal does not deal with a blanket prohibition on a certain land use.

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And that's the situation here. L&I has called this a use refusal, and I'm not disputing their terminology, but it's really a manner of access issue. And accordingly, we believe that it is what these cases that I've mentioned have called a hybrid refusal rather than a use refusal, which is really a court-made hardship standard that is easier than the typical use refusal hardship standard.

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The hybrid standard allows economic issues to be taken into account.

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And this is important because one of the bases of our hardship that I'd like to assert, in addition to those stated in our application, is that if we are denied relief to build a home with parking here, it is virtually impossible at this time to purchase an existing home in Fishtown that includes code compliant parking.

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short of going to the owners of those few properties, even if they're not for sale and

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offering the owner an amount, you know, over market value to pry the property out of their

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hands. So that's a hardship. I'll continue to our next exhibit. This is exhibit eight. It's

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the zoning map of the property. So you can see here we are just east of the intersection of

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Marlboro Street and Frankfort Avenue. The property is zoned RSA 5. As you can see here, and I really

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do apologize, this came out quite a bit blurrier than I had hoped, but if you look at our block

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and then some of the adjacent RSA 5 blocks, very few of the properties in Fishtown touch a rear

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street, a side street, or an alley, which is, again, the required manner of accessing your

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parking. It's a tiny minority. So, you know, instead in Fishtown, what you typically have

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is two properties that touch each other on the rear and each of them only touch a front street.

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So in other neighborhoods that you're probably familiar with, like much of Northeast Philadelphia

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or Winfield or Overbrook Park in West Philadelphia, there are shared private alleys

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that weave between the rears of homes. In some parts of South Philadelphia, there are rear

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streets behind homes. I was here on one such case last week or two weeks ago. But here in

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Fishtown, for a majority of the properties, it's impossible to have on-site parking while conforming

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to the zoning code. This is despite the fact that parking, accessory parking, is not a prohibited

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use. So this is also a factor behind our assertion of hardship and, you know, leads us to sort of

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this pickle where we have to create a home with parking from scratch if one is not available.

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And as I mentioned, my application for appeal, which I won't go through live during the hearing,

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includes other arguments, you know, towards our assertion of hardship.

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And real quickly, and I did not include these in my exhibits and we'll submit them afterwards in

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accordance with the board's regulations. This is a photo of the atlas map of a neighborhood

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in Overbrook Park showing those kind of alleys that I mentioned.

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thanks for your patience there so this is exhibit six which is our zoning site plan

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Thanks for your patience there. So this is exhibit.

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zoom out a little bit this is what our architects submitted to L&I

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um what you'll see here is that um we have this sort of dog leg that is ours in the back of this

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property um and between that and a very nice sort of entry garden which I'll show you a rendering of

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in a moment, most of the, well, not most, about half, I think if you go to the table, it's 49%

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of the property is proposed to be left as open space. So this is not an overbuild of the property.

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I also wanted to highlight that the existing curb cut, which I'll show you moments of in a second,

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serving the vacant lot, is 21 feet long. One moment, I'm sorry. Trying just to, there it is.

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Right here, you can see that the architect notes that the property width is 21 feet, and you'll see that the curb cut occupies the entire property width, whereas we are going to narrow the existing curb cut to 10 feet.

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So over half of the existing curb cut is going to be eliminated and effectively given back as parallel parking space to the community.

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So the community is going to regain a parking space through this project.

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We also had to submit an elevation to L&I, and this I'm just going to briefly touch upon to show you that within the garage, the parking space is fully code compliant and comfortably fits a full-sized passenger car.

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I'll also show you that the Streets Department has reviewed these plans as part of its typical

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zoning stage review and has approved these these plans which means that they do not run

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afoul of any Streets Department regulations. Exhibit 7 is a architectural presentation that

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was shown to the RCO. So here's the first photo I'll show you taken by the architect of the

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existing property and curb cut. This presentation is 11 pages long, so I'm not going to show all

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that to you during this hearing, but the entire thing is in your possession as Exhibit 7.

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A particular note here is that these photographs show this yellow translucent square, which

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approximates the massing of our new home in the context of its neighbors, which again is to really

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say it fits. It's approximately the same height, et cetera. Also, as part of this exhibit six

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presentation package are floor plans, single family homes. So I think the plans are great

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and include this recreational space in the rear yard. I'll sort of leave it to the architect to

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walk through them if you want him to do that. I think, Brandon, we want to concentrate on the

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parking issue. Yeah, understood. That's the only issue you have. So let's concentrate on the park.

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Okay. Thanks, Mr. Chairman. That's helpful. So I'll skip ahead a couple more pages in this

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presentation set. Actually, I'll tell you what, I will skip ahead to the next exhibit,

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which is Exhibit 9. So these are aerial photographs from Atlas, and I'll just flip

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through a few of these very quickly. The point of providing these is sort of twofold. One,

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today, so I will also submit this after the hearing, I received a letter from the seller

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and the seller's agent that states that the lot has been used for parking, first by her grandmother

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for over 50 years and that she still uses it for parking, the current owner, the granddaughter.

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But I didn't want to leave it to this letter as the only proof that the property has been

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used for parking for that long.

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So I went as far back as I could get a clear image in Atlas.

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This one's from 2004.

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You'll see the lot paved with a car on it.

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And I won't even zoom in that far at the others, but 2008 paved with a car on it.

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2015 paved with a car on it. 2020 paved with a car on it. I think you get the idea there.

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Exhibit 10 is street level images. Again, sort of went as far back as I could get clear images.

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I used a mix of Atlas and Google Maps. So this one's from Google Maps. It's from 2007.

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What you're going to see here is that clearly a section of the sidewalk here is a curb cut.

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and it looks like it's been a curb cut for a while because I don't know if you've ever walked

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on a sidewalk that's starting to like erode in in sort of small sections but you can see the

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stone sort of coming up through it from erosion and there was a patch that's been put on here

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from erosion. And there was a patch that's been put on here to try and repair a little of that

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to try and repair.

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and tie it into the rest of the sidewalk. So I would say that's evidence that even by 2007,

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this has been used for parking for quite some time. Our understanding is that around 2013,

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the city did major utility work on this block, repaved the street, and reconstructed that

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sidewalk. What you'll see here is as part of that, the city reconstructed the curb cut.

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The seller, the current owner, did not perform this work. It was the city of Philadelphia.

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You can tell that that's true by the way the curb cut matches the concrete of the surrounding

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properties that the city also installed. So, you know, that's to say we don't have a permit for

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prior parking on file for this lot, probably due to age, but the city's reconstruction of this curb

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cut and, as the seller has stated, its continued ticketing of cars that block the curb cut, I would

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say are evidence of its legality, at least in some manners of regulation. I'll just keep going

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through a few more photos. This is the most recent photo from Atlas. It's how the curb cut looks

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today. Not my clients, of course, but the current owner seems to put yellow paint on the bottom of

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it, occasionally uses cones to mark it, installed a taller fence gate with a towing warning there.

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This is from the other side of the block. So our property would be, if you can see my hand,

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towards the end of the right-hand side. We're not on the corner. We're a couple properties

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in from the corner on the right. But one benefit to the location is that cars, by the time they

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reach our property coming from the east, are slowing down for this stop sign, which promotes

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safety. The seller also indicates in their letter that they are unaware at any time over those 50

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years of an accident involving a car entering or exiting the lot. And then in the foreground here

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is an apartment building down a few properties and across the street with a curb cut.

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This is my client's current block on the 1300 block of Marlboro, simply providing this to show

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that while there's not a ton of properties in Fishtown with accessory parking, certainly not

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a ton of properties that have that parking fully documented due to age, having parking is not

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unheard of. Here are several properties on the same block that have it. You get the idea there,

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I think, too. So I will just go to the zoning posters. We hung posters twice here. This is

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exhibit 11 because Mr. Anastasio requested a continuance for the original hearing. I'm actually

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showing you just to highlight that the selling agent, the McCann agency has this sign. It remains

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there to this day with this hang tag underneath that advertises the lot as parking. So you can

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