Number 11, MI 2022-007-282-4100 Orchard Road.
Sean Wayland is the attorney for the applicant.
Leonard Reuter is involved.
This is his complaint against, appeal against L&I.
Leonard Reuter is from the city.
And Sean Ward is representing the property owner.
Good morning, Chairman.
Sean Whalen here.
Good morning, Mr. Whalen.
Good morning, Leonard.
Good morning, Mr. Chairman, members of the board.
I believe Sean Ward should also be here.
Yeah, I called him out.
Oh, okay.
We were joining as a panelist soon, sir.
Mr. Whalen, could you spell your name, please, for the court stenographer?
Certainly. Sean Whalen, W-H-A-L-E-N, here from Vintage Law.
Certainly. Sean Whalen, W-H-A-L-E-N.
Right. Do you swear for him to tell the truth, the whole truth, and nothing but the truth?
Yes, I do.
Mr. Reuter, could you spell your name for the court reporter, please?
Thank you. May it please the board, Leonard F. Reuter, R-E-U-T-E-R. First name is L-E-O-N-A-R-D, senior attorney for the city of Philadelphia.
Do you swear for him to tell the truth, the whole truth, and nothing but the truth?
Mr. Ward?
Chair, we're trying to promote him.
I see him.
He just.
Mr. Ward.
Mr. Ward.
Yeah, Chair, I was trying to explain that for some reason we're having a technical issue
with promoting him.
If you would just bear with us for a couple of seconds.
Take your time.
Take your time.
Yes, sir.
this is hillary he let me know he's waiting to to be promoted i know he had some issues getting on
initially this morning i see him here yeah i see him among the panelists all right
mr ward could you state your name and spell please for the court stenographer
yes good morning mr chair sean ward s-h-a-w-n last name ward w-a-r-d on behalf of ben
Manes, M-A-N-N-E-S. My address is 331 East Street Road, Trivos, PA, 19053.
So, Hillary, we want to start with Mr. Whalen, am I correct?
That is correct, Mr. Chair.
Mr. Whalen.
Yes, good morning, Board. Again, Sean Whalen from Vintage Law. I'm here representing Councilman
Brian O'Neill, who is the councilman for the district where this property is.
uh thankfully for as long and sorted as a history as this matter has and it's been going on for
several years uh we have the parties have been able to simplify this matter to a relatively
straightforward issue uh for the court today it's essentially a legal argument at this point
um i hope that as i state the facts uh none of them will be in dispute with either mr reuter or
Mr. Ward, but of course, they'll have the ability to speak up on their own behalf.
So I just shared a screen with you. Just quickly to give you some context,
this red balloon is 4100 Orchard Lane.
Excuse me. It is in the far northeast section of the city.
and here is a an image from atlas of the actual property itself as you can see it's a very large
corner lot this building here it's at the corner of orchard lane and ellicott road
this large building here is the existing single family house there is no change to that house
for its use. And what you're seeing here is the previously existing and since demolished
accessory detached garage. Again, this is just for the board's reference.
This is an RSD2 single-family house zoning district. This is a single-family house.
There's no refusal or anything before the board.
This is an appeal by the councilman against the issuance of permits to build this structure right here.
So what I'm showing you now is an aerial image.
On the left-hand side of the image is the existing home.
Orchard Lane is on the left.
Ellicott Road is down at the bottom of this image.
You can see a car parked here.
this is an existing driveway, and here is the fully built new garage. This garage was built
while all the permits were under appeal, but it is fully built, so we actually have the photos to
show what it is. So very quickly, just because it is somewhat relevant, again, the subject property
is 4100 Orchard Lane. There has at all times been an existing single-family house on this
large lot. There was previously, in approximately the same area but further towards the road,
a much smaller single-story detached garage. That garage was demolished and the new garage
was proposed. This is actually set forth mostly in a letter from Mr. Ward to the board of more
than a year ago, but there have been numerous instances of a permit issued, a notice of
Numerous instances of a permit issued, a notice of intention to revoke that permit by L&I, and then numerous amendments to the permit in order to arrive at what you see today, which is a detached garage that has been approved by L&I as an addition to the existing single family house.
intention to revoke that.
And this is the relatively straightforward matter in front of you. This is a matter of first impression, as I'm sure Mr. Reuter will assert also, to the best of everyone's knowledge in the city or outside, this is a matter of first impression where we have a single walkway.
So, this was built as a detached garage, fully separate structure. This is the existing porch to the single-family house. And then Mr. Maness connected the single-family home's porch to the detached garage by way of a covered walkway.
So, again, this is just an aerial to show you kind of relative size and location.
Sean, if I may interject momentarily, I apologize. I just wanted to be clear that the garage was not constructed and then attached. It was constructed at the same time as the connector.
Okay. So again, this is current site photos from earlier in the fall. This is the front of the house. Orchard Lane is here.
You can see this is from, I'm standing at the corner of Orchard Lane and Ellicott Road.
You have the single family home and you can see the two-story garage built there.
And this right here is the issue in front of the board today.
um in short i think there's no dispute that were this garage considered a detached structure
which we believe it is uh it it would receive a refusal for being uh too tall um i i think that
everyone agrees that and that's why actually this uh idea was constructed to have a single story
roof put over a walkway. And what you have,
let me see here it is, you can see this, this is the site plan. Let me just,
this is the approved site plan used by Mr. Maness. You can see the existing driveway,
existing single family house. Here's the garage, the two-story garage.
And then it was attached. This is actually part of the existing porch, not the home itself.
You have a four foot by 17 foot covered walkway.
Now, my apologies.
please. Again, whether or not this garage can be considered as an addition, or whether despite
even having this covered walkway, 17-foot covered walkway, constitutes still a detached garage.
The councilman's position is not whether the garage should be allowed or not. It is that
the interpretation by L&I and the precedent set here creates an extremely dangerous precedent
for the board and the city in that it circumvents the code restrictions, which are a detached garage
is not intended to have a second story. And here you have a full second story with living space
on the second on the second floor of that garage but in addition it circumvents the role and the
position that the code sets forth for the community there should have been a variance here either for
the additional height requested and then which should have generated a refusal as a detached
garage and then this project would have proceeded in the ordinary course before the rco there would
have been community meetings and then this board would have uh you know had this in that manner
um if i could just uh interject uh and again i do think that we were largely in agreement with
the facts uh but i just want to say that i believe to the extent that it may have been
to the extent that it may have been implied it would be a mischaracterization to say that the
implied it would be a mischaracterization to say that the application
application uh included any dwelling space in that upper portion of this garage the the
the permit applicate and again what we are talking about here is not what the current use might be
in fact but what was the permit application and what was the permit issued for no permit was
issued for dwelling units in this structure if it's currently being used that way we would agree
that's a violation but that's not what that's not what's before the board today what's before the
board today is what did the application say and what was the permit that was issued there's no
dwelling unit that was approved for this this structure uh this garage structure so i just
wanted to clarify that thank you mr reuter and i believe i i i thought i was being clear about that
but yes let me clarify um for the board this is a single family house that use has not changed there
is no request for that use to change or issue of that use before the board. There was this garage
applied for and approved as an addition to the house instead of as a detached garage.
That's the sole issue in front of the board today. I did not mean to imply, nor do I know
one way or the other, that there is an actual dwelling unit in the upstairs. It is simply my
understanding that there is additional living space uh occupied space in that second story
again the mr reuter is correct the use of that second story is not before the board and is not
an issue that i am addressing today and and for the record if i may there is no dwelling units
contained within this structure there are no bedrooms there are no uh full baths there are
no cooking units. It is strictly an accessory garage with personal storage.
Understood and accepted, Mr. Ward. So again, board, you can just see this more zoomed in
shot. You can see how there's a new roof created over this four-foot walkway that sort of covers
what was previously open ground. And this is what L&I's interpretation has deemed an addition
of the garage. I think certainly this is a new interpretation of the word addition or concept
of addition. Notably, the word addition or what an addition is, is not defined in the zoning code.
um therefore since it's not a not a defined term its interpretation is not subject to the
ambiguity issues with with regard to the code uh and in fact there are no uh pennsylvania or new
jersey cases that uh the applicant could find addressing a similar situation so this is a very
novel issue of law uh and again a matter of first impression by lni in order to bring this
forward. So since there is no definition here, the board can look at dictionary definitions to
inform its position, just as any court could. The Merriam-Webster definition of addition is,
quote, a part added, in parentheses, as to a building or residential section.
Further, the Merriam-Webster definition of add is to, quote, join or unite so as to bring about
an increase or improvement. It is the councilman's position today that
there is no addition under any definition of that word by creating an entirely separate structure
that has its own structural supports, its own separate roof, it has its own gutters, its own
doors access uh it has its you know separate utility connections and simply there is a band-aid
after the fact of uh you know putting this single-story roof on in order to yes they are
connected but that does not that connection does not create an addition i'm going to object mr
chairman to the uh characterization that the one-story structure was added after the construction
of the garage, and that is incorrect. I hear your objection, but Mr. Whalen, please continue.
Thank you. And Chairman Bergman, I would simply say I was not speaking to construction. I was not
there, nor am I making any opinion as to when it was physically erected. The initial plan sets and
initial approvals for the garage did not include the uh that single story roof and as i
the, uh, that single story roof. And as I laid it out and I have all of the letters and plan sets,
uh, but I hope to spare the board from, from that, uh, you know, that, that pathway here this
morning. Um, they are all part of the record so the board can review them. Uh, there was an approval
of a, of a, uh, smaller, um, separate garage that was not attached in any way. There was a notice
of intention to revoke that permit as being improperly issued. And then there were subsequently
multiple amendments to the plans. So this roof line here that you're looking at, again, Mr. Ward,
his objection is understood. I do not know, nor am I opining as to when it was physically
constructed. I was only referencing it was added at a later time with regard to approvals
with the city. And in fact, you can see, so again, you see here, and there is a previous site plan,
which is this exact same site plan, just removing this proposed walkway
that was previously approved and interestingly the applicant has subsequently added solar panels
which of course we all applaud the use of solar panels but they had another site plan performed
in the production of this of the solar panels work and their own contractors didn't even think
that that connection was valid. It's not even shown on here. Just further indication that
there really is no addition here. I mean, I think it stretches any definition that you could
possibly come up with with regard to an addition to say that this structure, the separate structure
here is being added to or included into the single family house. So as I wrap up, again,
this interpretation is extremely dangerous on several fronts. One, there's no limitation
to how long this could be. This walkway, this covered walkway, if it did actually constitute
an addition of this garage, you could build a second full house here. And that wouldn't change
the use, but you would have a second full house. So you'd have two houses on the same lot
now added as an addition by way of a simple walkway. You could also continue this. This is
a very large lot. With this interpretation, the owner could add another walkway and additional
buildings. You could have, again, breaching the multiple principal uses in buildings and structures
on a single lot. You could also have, in other instances, the precedent set here,
this walkway instead of 17 feet could be 100 feet. And now suddenly you're attaching
huge structures across large buildings. So the danger here is not just to this property.
And again, the councilman's not taking a position today on the appropriateness or inappropriateness
of the garage itself.
The councilman's position is that this garage, under the code provisions, should go through
the normal variance process that is set forth and provides the standard process by which
the community has input into structures that are not approved and should not have been
approved in this manner um so with that uh board i would rest i think i've made clear and uh i would
just request you know an ability to respond later if need be okay thank you um mr reuter um sure um
i just want to be brief here and then probably hand it off to sean uh who uh if necessary would
probably be able to do a better uh recitation of the history of the project from his client's side
but i just want to address some of the legal arguments that mr whalen's just made um not in
any particular order but for instance the contention that the allowance of this garage i'll just call
it garage structure for purposes of this hearing that this garage structure through the i don't
what you want to call it, portico, I guess, that, well, if we did it in this case, then
That, well, if we did it in this case, then somebody could build another house here or they could build another factory or something like that.
somebody could build another house here, or they could build another.
And there's no end to that.
But that would be, of course, completely ignoring what the proposed use of the additional structure is.
In this case, it is a garage, an accessory garage, private garage is permitted under the code in RSD1.
So it is not true that the department's interpretation of this being an addition because of the connection through the portico somehow allows anything to be built or any, it really doesn't allow for anything other probably than a garage or some other permitted accessory structure.
And, of course, this is leaving aside whether or not the code might permit, you know, an accessory dwelling unit, because as you may, if this property were historic, for instance, and I don't believe it is, though it could be, an accessory dwelling unit in a garage actually might be permitted under the zoning code.