Zoning Hearing Board - Special Meeting

You know if there's a login

Oh, I'm sorry. How you doing, Arty? Good. How are you?

Hello.

Very good. How are you, Fire. Please. All right. Good evening everybody. We're going to start the hearing

on the top. Okay. Good evening, folks. Couple of housekeeping items before we uh reconvene. There is a tablet on the top of the roll top desk over there. Uh anyone who is here who did not sign in last time but wants to speak, ask questions, make a comment, receive a copy of the board's decision. If you would take a minute now to go up and legibly print your name and address on that sheet for us, please

do one more thing with the attorney. [snorts] [clears throat]

Okay, is that everybody? Thank you folks. Uh just a couple of housekeeping items with the attorneys. Um I had approached well first of all typically we would open a hearing by reading the purpose. I believe we all know why we're here tonight. Uh council, can we have your permission to dispense with the reading of the purpose? Certainly. Yes.

Thank you. Um the only other housekeeping item I had approached council before the hearing started. We have a board member who is ill but who has offered to participate via the live stream and a telephone call on the panel here so that if she has any questions she can buzz in and ask them. Um there was no objection from one council. There was an objection from other council. My position is that I believe she has every right to uh appear moh remotely. She is hearing the same testimony as if she were here. Uh but that said uh I will take argument on whether or not she should appear and if remotely and if not why not. uh because if she does not and this goes to yet another hearing and another member is sick, we're then going to be down to two members. Uh and then we're going to have a bit of a difficulty. So, council,

it's uh our position that the uh neither the Pennsylvania municipalities planning code nor the eastern zoning ordinance provides for uh remote appearances by u by members of the zoning hearing board any more than you would allow us to have phone been public commentators. Uh I without I have had other boards do that.

Uh if you uh if you give us the opportunity on another evening to permit uh people to call in and uh testify remotely uh uh then maybe some sort of an agreement can be reached with regard to uh to procedures. But I do not believe that it uh the the zoning ordinance or the MPC really allows for that sort of thing. U and uh consequently we we would uh require and insist upon all members who are going to be participating in the final decision in this case be present and be able to see uh uh and test the credibility by being personally in the room of all of the witnesses that are being called. And it's your position that she could not do that staring at his screen any more than she could do it staring at them in front of her

in the absence of any uh provision in the enabling statutes. I I do not believe that I see them as two separate issues. But attorney D. Feliz I see no prejudice to the objectors. Um obviously I haven't had a chance to research this particular issue. I'm not aware of a spec specific section of the NPC that would allow it, but I see no I see no prejudice to the the objectors at all. She was president at the first hearing. Um I mean to your point, I think if we allow this, it keeps going and going.

Well, let's put it this way. I mean, it became common place during COVID. Um and since that time, it has at least in my experience become commonplace in other municipalities. Notwithstanding that, I do agree with you, Attorney Aztec, there is no specific provision either within our ordinance or the MPC uh which specifically um permits it. But Attorney D. Feliz, I'm I'm going to defer to you on this because if I overrule attorney Aztec, that's going to give him

So, how do you want to proceed? Can I have 10 minutes to take a look at it just to research it just to see sure what my options? I would just like to point out before we uh before we take that break that uh in co many of the rules pertaining to judicial and quasi judicial proceedings uh were changed to adopt to what were exigent circumstances. Of course we have no exigent circumstances here. We have a quum of the board. there were no quorum perhaps that might be an exigent circumstance uh that would permit the board to bend the rules or create new rules.

So are you saying that if this does go to another meeting and by some unforeseen set of circumstances we are down to two members. The third one you would agree could testify or could participate virtually. I'm not agreeing to anything. I'm just I'm just uh just I'm just following your logic. No, I'm countering your argument that it was allowed during CO and I'm suggesting that CO was an unusual

Well, and I would respectfully suggest that, you know, with one of our members uh recused at your um request and another one being ill tonight. You know, it's an unusual set of circumstances, too. But so the the the recusal was not necessarily at my request. I I believe the chairman indicated that his son was going to be a witness in this case. Right. So I think he voluntarily recused himself. It didn't uh that didn't emanate from us. I thought it did. If if my memory is is faulty then I apologize.

Exercise ethics act judgement. Yeah, absolutely.

Yeah. They don't want her. Can you text her? Tell her she's free. Okay.

That's not We'll see you. King.

Oh my god.

[clears throat]

I just found law that says we can do it. Oh no. Do you want to go see [clears throat]

I can fill this room. [clears throat] You know that

just a couple Come. Okay. Oh. Oh. Okay. I just found law that allows us to do it. I just found law that allows us to do it. Senate Bill 841, 2020. Yep. Attorney Aztec, let me tell you what I have found while attorney D. Feliz was out. Pennsylvania zoning board members can participate remotely in hearings under

state law and particularly following updates in 2020, which of course was during COVID. Local government bodies including zoning hearing boards may be authorized may use authorized telecommunications parentheses video/tlephone for meetings. Remote members can participate in discussions voting and count toward a quorum. The legal authority for that is Senate Bill number 841 of 2020. The implementation says while some boards fully adopted virtual formats, others like Philadelphia's ZBA have moved to hybrid models where although public participation is available remotely. Board members may be required to attend in person. To ensure a specific board is operating legally, you should check with their local policy as some municipalities may have returned to in-person requirements while others continue with hybrid or remote options. Um I am not aware that the city has undertaken anything to require um participation in person after um Senate Bill 841 in 2020. So as far as I'm concerned, she is permitted to participate. Will we be permitted to uh allow the public participate to participate remotely?

Do you have people you want to participate remotely? They didn't know that they could because a policy adopted by the zoning hearing board that would allow that. So I'm just I'm I'm she would be here were it not for the fact that she is ill. So there may be people if somebody is home ill then I would advise the board yes they should be allowed to permit remote participate remotely and if someone was unable to be here because they were out of town or had uh scheduled uh uh to be elsewhere would they be permitted to participate or are we making up the rules as we go along?

I'm not making up anything. No no are we that's that's That's my That's my question. Um, do you have someone who could not be here this evening? Is that what you're getting at? I'll let my client answer that. Yes, we have someone who could not be here. Can you get hold of them so they can participate remotely this evening? They have provided a statement. I'm sorry. Have provided a statement because they couldn't be here.

Okay. So, which do you prefer? You want to present the statement or do you want to get hold of him or her and have him or her participate remotely? I don't know their condition in being able to participate remotely because they are ill as well. Okay. Um so they did they had provided that ahead of time. So that's what we have to to enter in on their behalf if that's per permitted. Well, can you call and see what their condition is and see if they can participate remotely? Oh, okay. That is attorney Aztec if you want that as opposed to providing the statement that you have.

We're we're fine to provide the statement. We just like it on record. Then it sounds like the issue is resolved. I would just ask is this someone withstanding?

Well, that you can get to when when the statement is is offered. just creates an awkward situation because there may have been other individuals who uh uh would have been here this evening. You'll remember the first night this room was filled and tonight it's it's not. Uh there's there's other individuals who uh uh may have been willing to participate remotely had they known that opportunity was available to them. Well, we we we can't deal with what could have been. I mean, everybody had the same opportunity to search for Senate Bill 841. I didn't have reason to before this issue arose this evening. But I would point out that there has been no policy established and I believe this would be the first time uh a uh zoning hearing board member participated remotely. I don't know whether city council uh permits uh votes or participation in votes by uh members who simply don't attend whether medical excuses are required or not. uh and I think Senate Bill 841 uh was uh predicated upon the exiting circumstances of COVID and emergencies. and and I I I absolutely agree at the inception it was but it specifically says while some boards have fully adopted virtual formats others have moved to hybrid models where although public participation is available remotely board members m may be required to attend in person and then it urges the reader to ensure a specific board is operating ating legally, you should

check their local policy as some municipalities may have returned to in-person requirements while others continue with hybrid or remote options. And all I'm saying to you is that I am not aware that the city has undertaken to uh take any action to undo 841. And my position is that the city has not adopted a policy to permit hybrid or otherwise and has been acting uh since CO uh in a manner in which requires the presence of zoning hearing board members and I believe city council members and other members of its boards to be present uh uh and not participate particularly vote participate in votes remotely. No, that's the record that we made. And uh

yeah, and and respectfully as I read it, 841 supersedes what is in the zoning ordinance in the MPC and specifically gives the right to participate remotely unless and until the municipal body does something to overturn that, which I'm not aware they have. So I I would just question, has the board allowed participation in voting by remotely in the past? No. I'm sorry. No. No. Okay. Okay. No. What about council? Has council I have no idea. I don't know about Brian. I don't know if Brian would know. Do we have the city administrator here? We can ask him that question under oath.

Wow. Could Can we just go off the record for a second just to talk to you real quick? Absolutely. If we have an agreement, I'm glad to.

What's the So this

[clears throat]

It's amazing.

Jesus. I don't think he is

Um, Mr. Campos They're trying to make things easy.

Yeah. We were not supposed to be here at the airport.

Yes. wake up at drive to We don't want [cough and clears throat] to wish too. to be the bearer of bad news. But what has transpired up here is to avoid having to go back and forth on the issue of remote participation. Uh the appellence council has requested uh that we look at another date and everyone is available on Thursday evening, February 26 at 6:00. So, with that, is there a motion to move this to um Thursday, February 26 at six o'clock,

Miss Phantom, Miss uh Mr. Lipac. Hi, Miss Thomas. Um, as a result of having announced on the record the new hearing date, the city will be spared the expense of readadvertising the hearing. No new notices will be sent out. However, I think you're going to repost the property, are you not, Mr. Tilman? Yes, we'll repost it. Okay. Uh, anyone have any questions? Meeting concluded.

See you on the 26th. Mr. Campus. I stayed up all night last night. I actually I was actually stalking this house last night.

[laughter]