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Hearing video

ZBA Hearing - December 19, 2023

Philadelphia Zoning Board of Adjustment (ZBA)Dec 19, 20232h 53m

But again, we're talking about an accessory garage and whether that is, whether this is properly an addition. We agree with Mr. Whelan that the code doesn't define addition. In fact, for that matter, neither the International Building Code nor the International Existing Building Code define addition.

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uh and the question is i and again i think mr whalen's right is that you go to a lay definition

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which is something that's added to something so you have a structure there's no dispute

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uh that the garage is a structure there's also i think no legitimate dispute that the portico

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is a structure uh and a simple way to look at that is if you look at that portico and i'm maybe i'm

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using that word incorrectly, but if you look at that, it's very simple. Does that or does that

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not require a building permit? Clearly, it does require a building permit to erect that because

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it is a structure, and structure is defined, and a structure is pretty much anything that's built

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above ground. The code has a very broad definition of structure, so there's no question that it is

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attached to the main house, and there's no question that it's attached to the garage.

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So is it an addition?

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The portico is an addition to the house, and the garage is an addition.

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And again, because it's not defined, it's the city's position that we have to interpret the code in a light that's least restrictive to the property owner.

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And it's our position under numerous case law, most particularly Turchi, but also a number of other cases in the Commonwealth, that the department, that the zoning board should defer to the Department of Licenses and Inspections on its interpretations of code language unless the zoning board finds that it is clearly erroneous.

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So unless you find that a determination that this garage structure is not, unless you decide that the department's determination that this garage structure is an addition, unless you find that that is a clearly erroneous conclusion by the department of L&I, then it's our position that you have to defer to that determination and that interpretation by L&I.

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And again, we don't think the board should be dissuaded from or distracted by, you know, claims of what the property is being used for.

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Again, as I said before, we didn't want to dwell on it, but if the garage structure is being used improperly, that would be a violation and there's a process for doing it.

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There's one other thing that I do want to raise, and I'm only raising it, not out of any disrespect whatsoever, but just so it's clear in the record.

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we would ask mr whalen if he could indicate to one of two to answer two questions one

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is councilman o'neill here in his capacity as an individual or is he here in some representative

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capacity because with respect to the latter we don't believe that there's any authority in the

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law for the councilman to for the council member to appear uh as a representative of constituents

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As an individual, we would need there to be some statement on the record as to how he is harmed by the determination of Allen I.

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In other words, what is his standing in this case?

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And again, we don't mean that in any way out of any disrespect to the council member,

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but the council member as an individual certainly has to show that he is detrimentally harmed for the outcome of this.

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has to show that he is detrimentally harmed by the outcome of this.

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So, and that's it for now. I'll just pass it along to, to Mr. Ward.

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Mr. Ward.

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Okay. At this time, can I ask that Sean Whalen stop sharing his screen so I can share mine?

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Excellent. Thank you.

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okay let me

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all right Mr. Chair could you confirm my screen is shared I don't I see it's coming up I believe

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I see it yep okay very good um let me let me let me just back up to

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a couple of items

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raised during Sean Whalen's

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presentation.

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Let me find it.

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There it is.

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Just for

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clarity,

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in the council... We're seeing a blank

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screen, Sean, so you know.

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Oh, I'm sorry. Hang on a second.

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Okay.

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that come up now yeah

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okay you should see that one though right yeah oh

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all right let me

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bear with me my computer went down this weekend and it was

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repaired for hours upon hours and let me and as the chair knows I'm usually pretty good at this

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all right let me I'll stop share and I'll try and share again

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we see the letter okay all right uh and and with all due respect to the councilman i've

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done a councilman for you know what brian 44 years now um um you know upon his filing of the

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appeal i i attempted to run through the factual background to try and uh stem this matter and

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to resolve it. However, I did file, you know, I submit a response to the councilman regarding

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his concerns. Initially, in his appeal, he indicated that the permit was revoked. And

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just for the record, I want to I want it to be clear that the notice of revocation was

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issued June 6. And it would be revoked by July 6. However, we did file an appeal to

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this board on or about June 23rd within the 30-day appeal period. Following amendments to the permit

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application, it was agreed through discussions with Leonard at the law department that because

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the permit was amended and subsequently issued, the appeal from that notice of revocation was moot

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And therefore, that was that appeal was withdrawn by the applicant.

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So so just as a factual background, when the first garage was proposed, yeah, there was a notice of revocation because it exceeded the height because it was a detached garage.

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So we filed an amendment to attach the garage to the primary residence there after it was discovered.

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discovered due to a faulty measurement. As you know, or as you can see in Sean Whalen's photographs,

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the property fronts on both Ellicott Road and Orchard Lane, Orchard Lane being the front of

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the residence and Ellicott Road being the side street. There was a faulty measurement of the

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setback from the Ellicott Road property line due to the fact that Ellicott Road, Orchard Lane,

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This is in the Crestmont Farm section.

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They're country lanes.

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There are no sidewalks, curbs, and other improvements.

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So the Second Amendment moved the structure back from the roadway to comply with the 35-foot setback.

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Again, that is not an issue before the board today.

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There was a claim of something regarding nonconformity and grandfathering in the councilman's appeal.

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We never claimed nonconformity, nor was it brought up during the review or approval, and therefore we submit that the permit was not issued based upon any claim of nonconformity.

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We never claimed nonconformity, nor was it brought up during the review or approval.

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I believe the only nonconformity, and Sean will, and you can agree with me if you choose, is that the subject residence does not conform now with the required front yard setback of the existing RSD-2 requirements.

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So in addition, you know, we comply with the open area and the occupied area.

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So just having said that, I just wanted to clarify with regard to let me go to.

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Now, are you seeing my exhibit list or are we still on where we see your list now?

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OK, excellent. So I prepared this exhibit list.

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Let me blow this up so you can see. Included as A1 is the code section on nonconformities, but I don't think that is really the issue before the board today.

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You know, it describes nonconformities can continue. There are different types of nonconformities.

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And provided that you comply with the table of dimensional regulations, you know, any any any expansion or new permits can be issued if they comply.

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I think what is important as A3 is the code section 14203 under definitions, number 323, it defines structure.

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I also add the residential building permit and the approved plans, the inspection reports, and a certificate of compliance.

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So under nonconformities, there are roughly six different types.

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Non-conforming uses, parking, and signs are not really applicable in this instance.

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You know, we discussed the structure.

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The house, you know, is currently non-conforming because it doesn't have the front yard setback.

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So, you know, we're talking basically about site improvements or, you know, and it's not even a non-conforming lot.

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The lot complies.

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So we have no claim of existing non-conformity.

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The use is permitted.

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The lot satisfies the requirements.

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So when we come down to the definition, you know, the councilman claims that the structure is a detached structure, and I submit that that is misplaced.

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The zoning code clearly defies structure, quote unquote, as under 14-203, number 323, as and even a more strict definition under the historic preservation is a work made up of interdependent and interrelated parts in a definite pattern of organization structured by man and affects the real property, including a public interior portion of a structure.

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And then it's, you know, it adds that for all other purposes, it's any type or form of construction above the ground.

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Okay.

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When we look at our residential building permit, you know, both contained in the councilman's exhibit packet at Exhibit 9, I don't believe it includes the building plans, but I have those.

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It clearly depicts, as approved, a one-story structure, which is clearly, as approved by the plants, secured to the ground via typical 20-inch caissons, four foot, six inches deep, embedded into concrete footings.

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And that one-story structure arises above the ground to a height in excess of nine feet.

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Further in conformity with Section 305, you know, we comply with the lot area, the occupied area, the open area, the rear yard, front yard, and height.

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Um, if this was a detached garage, yes, the height, um, you know, would have been an issue, but by attaching it to the primary structure of the residence, uh, with a one story structure, uh, I know a lot of, um, uh, weight or reference is being placed on addition, uh, you know, and, and it is acknowledged by the appellant that addition is not defined in the code.

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because uh it's not relevant uh what is relevant is whether or not it is can i just sean can i ask

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a question so you're saying the one story edition is the what i'll call the little roof in the

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walkway uh yeah as sean uh wayland referred to it and and leonard the uh the portico okay

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Yeah, as Sean Whalen referred to it and Leonard, the Portico.

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Okay.

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Okay, so let me do this.

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Let me go to the building plans.

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Okay.

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All right, can we see the approved building plans?

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We see it.

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Okay, so I'm going to blow this up here.

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On the left side of sheet S3, I believe it is.

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Yeah, sheet S3.

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You will see here is the detail for the installation of footings and caissons to support the columns, which support the roof structure, which is attached to the house and attached to the garage.

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So the permit, as you can see, issued on 10-14 of 2022, is for the erection of an addition to

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include two interior parking spaces as per approved plans. Moving on, you know, again,

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it's it's an addition and or alteration to a property uh it required several inspections

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okay um in my packet we not only have the permit the plans but we have all the inspection reports

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mr chair so uh beginning and and you'll see the numbers um you know the the last three digits

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syndicate the inspection number so uh inspection number one let me reduce this um uh it was passed

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um this was the um advising the owner that they must uh schedule an initial inspection

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uh moving on there was an initial inspection by inspector edward devlin

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And that passed. And it was noted in the inspection that the structure, which was under construction, must be moved back to comply with the setback.

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OK, moving on, you know, inspection number three was waived by Tiffany Briggs, and that was for the under slab inspection.

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again an inspection number four waived by tiffany briggs

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indicating that completed the footing inspections already so that was not required

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inspection number five by joe silberstein now retired um interior and exterior wall framing

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okay uh inspection number six i met on site with the contractor footings were inspected

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you know etc etc however fast okay uh inspection number seven again passed met on site with

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contractor under slab inspected approved four inches of stone with vapor barrier okay to pour

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Inspection number eight, Joe Silverstein, interior framing inspected, all work per plan and permit.

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Next inspection was final.

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Inspection number nine and ten were waived, I believe, by Tiffany Briggs.

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So there is no actual inspection report available online through Eclipse.

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However, inspection number 11 by Joe Silverstein, the installation was accepted.

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No further review required.

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It was passed.

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Met on site with the contractor on February of this year.

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Inspection passed.

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It was accessory structure for final compliance.

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And then finally, on April 13th of 2023, it is a certificate of approval issued by the department for the erection of an addition to include the two interior parking spaces.

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So at this point, I think the.

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But Mr. Ward, all those inspectors inspections are based on the premise that this is an addition, not a detached garage.

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Am I right?

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It is based upon that this was a one-story and two-story addition to existing primary residence as defined by the code and approved by the department.

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And that it's not a detached garage?

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It is not a detached garage because it is attached to the primary residence by a one-story structure.

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Okay. Thank you.

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The reliance on the term addition is misplaced, and we have to be confined to the definition as provided by the zoning code of the city of Philadelphia.

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Thank you.

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Okay.

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Do you want to have your testimony adopted by your client?

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Do you want to have your testimony adopted by your client?

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Yes, Chairman, if I could just respond very briefly to the points raised by Mr. Ward and Mr. Reuter.

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Very briefly, all of the points, while eloquently stated, are red herrings before this board.

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I'll go through it initially.

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Mr. Reuter is correct.

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Uses are irrelevant.

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We're not addressing any uses.

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We're not discussing any uses.

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it doesn't matter whether this was approved as a garage or a shed or it's it's an approved use

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accessory to the single family house there's no issue with that the issue is whether or not the

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structure is an addition similarly mr ward raises the issue and defines structure for the board

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these are structures absolutely and without a doubt that's another red herring there's no

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dispute that these were new construction structures that were erected above ground.

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They required permits.

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The permits were received and that inspections were passed.

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There's no issue before this board today about whether the erected structures were built

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well or in accordance with all the code.

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I'm going to assume, at least for the purposes of today, that they were, that all those inspectors

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did what they were supposed to do when the city acted correctly and that that building is properly

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structured and built. The issue is solely whether or not the structure as built and built despite

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being under appeal constitutes an addition or a detached structure. And here the councilman's

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position is that L&I's interpretation of this single story structure, this walkway, portico,

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as it's been called, is clearly erroneous to state that that is constituting an addition of

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this clearly separate structure to the existing house but again we make no issue the one story

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roof that's added is a structure that could be added and i don't think there's any testimony

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today separate and apart from um the garage itself it had mr ward showed drawings that it

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has its own structural supports and you know i can't opine as to the structural stability of it

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But, you know, it is a separate structure that could be built, whether or not the garage is there at all.

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And lastly, the biggest red herring is Mr. Ward's allegation that addition, the word addition is not relevant and shouldn't come into play.

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That is the only issue before this board is the relevance of the word addition and its definition.

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the the analysis of that language is so pertinent because at the same time that Mr. Ward is

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scrolling through all of the permits and issues or all of the permits issued rather he is showing

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language that specifically says and defines what is permitted as an addition although at the same

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time he's claiming that addition is not relevant um so i i think that's fairly clear the last point

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that i would make uh while mr reuter um you know sort of begins to assert a standing argument that

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is an argument before the courts that's not an argument before this board however the councilman

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o'neill is here today and has brought this matter as a duly designated representative of city council

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So with that, Mr. Bergman, I think the councilman is on and can answer any questions that the chair may have.

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Mr. O'Neill.

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They have been allowed to speak.

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Could you state your name, please, for the record spelled for the court reporter?

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Yes, Brian O'Neill.

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B-R-I-A-N, O-apostrophe, capital N-E-I-L-L, Councilman for the 10th District, which includes 4100 Orchard Street, Orchard Lane.

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Okay. Do you swear or affirm to tell the whole truth, nothing but the truth?

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