civus
Hearing video

ZBA Hearing - October 14, 2020

Philadelphia Zoning Board of Adjustment (ZBA)Oct 14, 20205h 0m

We also received a request for a continuance of 4602 Frankfurt Avenue,

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4602 Frankfort Avenue, number two on your hearing list.

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number two on your hearing list.

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The request came from Council.

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The request came from Councilwoman Sanchez.

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Okay, is there anyone out there who objects to the issuance of the continuance?

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If not, MI-2020-000440, 4602 Frankfort Avenue is continued.

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have uh beretta beretta you have been unmuted you can open your mic wait to be sworn in to

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speak to a continuance beretta fuller i believe uh if that's correct please identify yourself

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please spell your name first and last name and give us your address

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who who who name are you on right now beretta fuller oh yes my name is beretta fuller uh my

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address is uh 1347 south hick street uh philadelphia pa 19146 which is embossed with

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1513 reed street all right hold on one second uh your first name is spell it please uh b as a boy

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E-R-R-E-T-T-A

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Last name

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F-S-F-R-E-N-K

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U-L-L-E-R

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Okay, and you swear and affirm to tell the truth

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The whole truth and nothing but the truth?

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I affirm, yes

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Thank you, and what case are you here on?

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I had such a problem

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Getting through

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Let me see if I could

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What would I give you?

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Did you say 1347 Hicks?

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Yes, sir

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And you are the owner applicant?

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Yes, I am.

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You're requesting a continuance?

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Yes.

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I was on the last time, and there was no refusals in doing this.

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However, the zoning board, we have some papers that a gentleman, Mark Bennett, who would be joining in by phone if he's not on right now,

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has the information to send to you all information that would be very helpful uh you're asking for

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you're asking for a continuance today correct i guess so yes sir okay all right so mi-2020-001136

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1347 south hick street is continued

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um chair this is sharon seleta can we confirm that the um the property owner understands what

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you mean by continuance because she did have someone named mark zwick submitted an exhibit

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packet for presentation today yes so yes sir so that's probably why i may not need a continuous

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i'm so confused i apologize okay relax relax take it easy are you prepared to go forward with the

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case yes okay i'm sorry if i could interject uh mark zwick i have here i'm going to open his mic

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and allow him to speak however the understanding is that there either be the owner or an attorney

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who would handle the case mark zwick can you unmute your mic

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i'm sorry for the confusion she's ready to go ahead she has all her paperwork

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you are yes she is my name is mark i'm just helped i'm a real estate agent helping her

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with the process okay she's ready to go okay thank you thank you all right we'll call your

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case in order that is okay thank you anyone else requesting a continuance or withdrawal

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Oh, Vern, I see your hand up. Are you asking for an additional continuance?

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I think I should have lowered it. I'm sorry about that.

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No worries. Thank you.

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Here I have Sean Whalen.

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sean you can unmute your mic and wait to be sworn in and speak to a continuance

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yes hello this is sean whalen from vintage law um i am calling or i guess mr whalen mr whalen

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would you please spell your first and last name s-e-a-n w-h-a-l-e-n and you swear and affirm

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to tell the truth the whole truth and nothing but the truth yes i do please proceed what case

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you'll be speaking of? I'm calling with regard to 2031 Washington Avenue. It's MI 2020-00-0065.

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I'll look it up one second, please. Yep.

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Look it up one second, please. Yep.

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That's number 13.

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Karen Saleta, I believe this is a case that was originally continued attorney moving party and that was accidentally placed on the list for today. Tanya, Ms. Sunken, am I correct on that?

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Yesterday or last week?

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that miss saletta is stating exactly what my understanding was with uh david orphanetes who

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represented the uh the owner here was simply that this was attorney moving party and he hadn't asked

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for it to be relisted so i'm just making sure that it does indeed get continued or withdrawn

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yes sharing that's correct all right do i read it in as a continuance or we just ignore that

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Yes. It's number 13 on your list.

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Yeah, I have it. Again, I'm sorry I didn't hear you.

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Tanya, do we put that in as a continuance?

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Yes, Chair. Attorney moving party. Attorney moving party.

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All right. So MI-2020-000065

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2031 Washington Avenue, Attorney moving party.

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All right. Thank you very much, Chair. That's all I have with you today.

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Thank you. Anyone else?

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Chair, we have William O'Brien.

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You can unmute your mic and wait to be sworn in.

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Good afternoon, Mr. O'Brien. Please identify yourself with a record.

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Good afternoon, Chairman. Members of the board, William O'Brien, O-B-R-I-E-N.

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on behalf of Baker Street Partners.

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I don't know what number it is on your list.

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The address is 5001 Humbria Street, MI 2020-001236.

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Right.

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I'm not requesting continuance, but there is an issue.

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Excuse me, this is Sharon Saleta.

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Could we also, for this discussion, have Leonard Reuter

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from the law department is is also here to speak on this just before we do that is there anyone

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else request i could understand there's some legal issues on this case so before we get into

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it are there any other folks requesting a continuance or withdrawal let's complete that

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list before we go any further

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no additional hands thank you okay um mr o'brien uh i understand from speaking to miss uh saletta

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that there's some concern we were going to request a continuance um but you tell us what your your

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concerns are and then we'll go from there is mr reuter yes i see leonard's here as well okay yes

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leonard leonard why don't we do this let's get you on the record full name and uh and i'll swear

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you in sure uh leonard reuter l-e-o-n-a-r-d last name is r-e-u-t-e-r senior attorney with the city

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of philadelphia law department we're going to firm to tell the truth the whole truth and nothing

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about the truth i do all right so uh mr o'brien yes mr chairman could you swear me in as well

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please okay do you swear and affirm to tell the truth the whole truth and nothing but the truth

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i do thank you please proceed uh this project 5001 umbria street is subject to cdr uh review

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and um we made a timely application to be included in yesterday's meeting but

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because of workloads and demand, we were pushed to an agenda on October 22nd.

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My understanding is that there has been a procedure or policy for the zoning board not to hear

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the zoning appeal subject to CDR review if that CDR review is incomplete. I had contacted the

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law department and ask that that policy not apply in this circumstance because it's really a

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hardship. We did satisfy the schedule. I would ask the board to hear this case, which has

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overwhelming community support, and hold its decision until the CDR process is complete.

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Mr. Reuter?

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Yes, thank you. Thank you, Mr. O'Brien. We're certainly sympathetic to the position

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that Mr. O'Brien's client is in here. The problem is that what he's referring to is

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The problem is that what he's referring to is not a policy.

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not a policy, it's an act of

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It's actually a fairly clear directive in the Philadelphia Code itself.

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And I'll just quote it.

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It's 14-304-5-B.1.B.

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so it's one of those provisions that's got a lot of the sub parts to it and it expressly says that

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where lni issues a refusal or a referral on an application for development that meets the

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criteria and table 14-304-2 and just an aside that's the table that tells you whether or not

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a project has to go to cdr so where where it meets the criteria for cdr and the applicant files an

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appeal to the zoning board pursuant to 303 sub 15 that's the regular um you know seeking a variance

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or special exception it especially says the zoning board shall not commence a hearing on the

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application until reviewed by the civic design review committee has been completed pursuant to

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the procedures of this subsection and um this particular provision uh is actually the subject

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of an appeal that the city itself has an appeal from a decision of this zoning board that granted

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a variance in another matter at 1314 spring garden and that particular this particular provision is

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one of the points that's an issue in that case where the board did proceed to have it hold a

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hearing prior to it prior to a decision by the civic design review committee so that's one of the

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the points of the appeal so again it's the city's position and the law department's position that

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the board does not have the authority to commence a hearing now that being said we can treat uh the

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mr o'brien's request to hold the hearing today right um as a kind of motion and if he wants to

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make statements in in the context of the motion and i understand that there may be a council person

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here who would like to speak on the issue they can certainly speak i think it's fair that they

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could speak to the motion but the board uh it's our position that the board cannot proceed to the

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merits of the actual uh case itself so when you say the when you say the merits does that suggest

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you're saying are you saying to us we can't rule on it you can't have the here i mean again if if

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the code had said you can't make a decision that would be one thing you could hold the hearing and

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then just hold your decision unfortunately it specifically says you cannot commence a hearing

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so again if we if mr o'brien wants to say you know again consider this a pre-hearing discussion

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about whether you could proceed then i think it would be okay for him to have the council person

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speak to uh to that issue um and but i don't again it's our position that you can't actually

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you can't hear the variance case the whole variance case is what I'm saying you can

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you can only hear arguments about whether or not you can proceed so what and again I think I hear

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I'm going to make sure I'm clear on this and what we've been doing since we've been doing

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these virtual hearings when we still have some outstanding issues maybe as it relates to the RCO

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we keep the the record open and basically we say this hearing will be resumed we give it a specific

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date and time at which time we will consider any feedback related to the rco position could we not

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also put in feedback or a decision from cdr i think the problem here is that the code provision

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at issue is so clear that you cannot even commence a hearing um and again with respect to cases where

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the rco was unable to meet within 40 days the code does allow you to proceed and you can certainly

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choose to hold the record open to hear from an RCO later. Because again, they're supposed to

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meet within 40 days. And if they don't meet that deadline, technically you can proceed. And again,

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we've done some emergency regulations that you may recall that also address that particular issue

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of RCO meetings. This is a little bit different though. It doesn't say like if CDR doesn't meet

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within 40 days you can proceed it says you can't have the hearing until they're completed um i i

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you know i would note that i believe that the and mr o'brien i think said that the hearing

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the cdr committee would be able it would uh hear uh their matter uh on the 22nd which is next

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thursday um and certainly you know the board could um reschedule this case to as soon as possible

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after that um now again that of course assumes that the cdr makes a decision uh by that uh on

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by that, on that date. But, you know, but I just don't think that this is a provision that's way

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that date um but

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Okay, I understand. And no disrespect to you, Leonard, I respect you immensely. And I do

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respect your opinion. But when you read off what the rules and regulations are,

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those are ignoring normal times. As we all know, these are not normal times,

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are very unusual times. And boards, like our board and other boards, are struggling with

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trying to get as many cases heard and to move the process along. So I'm just wondering, and

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you may not have the answer. I'm always looking to find some solution, I guess, because of the

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circumstances, which were never addressed when the rules and the codes were written. No one

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anticipated a pandemic. And for us to have to be delayed, we have over a thousand cases in

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backlog as we speak so just again trying to well there's a way in which we can do exactly the way

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i said you know and you you spoke to it i i don't i mean mr chairman if i may i mean

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obviously i i don't control what the board does you're you're essentially an independent board

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um i don't believe uh that um you know at let me i don't know that the city this we're not

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going to take a position necessarily in appeal this on that basis but i would say again the

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failure to have cdr does open the door um to somebody else taking an appeal um and again it

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does seem if you were planning on which i think you know would make sense if you could proceed

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to keep the record open to a later date you're still essentially scheduling it then the decision

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wouldn't be made to that later date so i'm not sure that it makes that much difference to um

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to the overall outcome here if if the decision is going to be held anyway uh so but again like

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i said i'm okay with making an accommodation to allow the council person to speak if he's here

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um and again allowing mr bryant to speak as it goes to this issue um but again i mean it's you're

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the board it's it's ultimately up to you um but that's our position in the three or four years

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I forget how long I've been here. I don't think we've ever had a case like this. At least I don't

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recall. And I think if it weren't for the situation we're in with the pandemic, we probably still

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wouldn't have one of these cases. So again, I appreciate Leonard, I appreciate and I respect

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your position. I just don't know what harm would be done if we hear the case and hold

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and see what happens as a result of the CDR. And at that time, we can vote on it, which would be

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the following week. I guess the earliest we can vote on it would be the week of 28th, I think.

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Chair, this is Sharon Soledic. Can I mention that they will not only have to come back for a vote,

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they will have to come back, they will have to present to you any changes made as a result of

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CDR. We will have to allow testimony on that from any member of the public who wishes to testify.

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so they will essentially end up in the same position as they would be if we tried to give

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them if we can if we continue okay all right i understand there's a council person that may be

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on this call or mr o'brien do you have anything that you want to add to the conversation we've

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been having uh yes briefly um the unique circumstance here is that um the cdr published

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rules, provides a schedule. And to qualify for yesterday's CDR meeting, the schedule

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specifically requires that the necessary materials be submitted before 4 p.m. on September 22nd.

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The materials were submitted, in this case, five days before that.

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This is not the only board or commission or process that has deadlines to qualify for inclusion on an agenda.

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Mr. Reuter also represents the historical commission, and they have a similar process with published meeting dates, and to qualify for that specific hearing agenda, materials have to be submitted by a certain date.

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In my experience, I've never been excluded from an agenda if I made a timely submission.

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I've also had the pleasure of being before the Historic Commission for meetings that have lasted six hours or more because of the length of the agenda.

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In this case, the Planning Commission CDR meetings don't start till one o'clock.

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In this case, the Planning Commission CDR meetings don't start until 1 o'clock.

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