Darin J. Steinberg, Esquire8080 Old York Road, Suite 215Elkins Park, PA 19027Attorney Identification No. 78747(215)635-2480dj s@darinsteinberglaw. com

Attorney for the Zoning Board of Adjustment

Appeal of:

Karen Lewis andCarmen Bolden

Appellant

From the decision of:

Philadelphia ZoningBoard of Adjustment.

IN THE COURT OF COMMON PLEAS

Civil Division - Special Docket Program

September Term 2012

No. 0976

FINDINGS OF FACT AND CONCLUSIONS OF LAWOF THE PHILADELPHIA ZONING BOARD OF ADJUSTMENT

This appeal was taken from a decision of the Zoning Board of Adjustment of the City ofPhiladelphia ("Zoning Board" or "Board") at Calendar No. 17519. The Board held a publichearing on August 8,2012 and granted the requested variances with proviso for the propertyknown as 1942-58 N. Front Street, Philadelphia, PA (the "Subject Property") to relocate lot linesto create one (1) lot from five (5) lots in order to construct three (3) structures of three-storymulti-family affordable housing rental units for twenty-five (25) families/units with ten off-streetparking spaces and one community/office space. The Board's decision to grant the varianceswith proviso is based upon the following Findings of Fact and Conclusions of Law:

Findings of Fact

1. On March 2,2012, Kramer Marks Architects submitted an Application for Zoning/UseRegistration Permit (the "Application") to the Philadelphia Department of Licenses andInspections ("L&I" or "Department") on behalf of the property owner Women's CommunityRevitalization Project ("Owner" or "Applicant") with respect to the Subject Property. TheApplication was identified by the Department as Application No. 392064. Detailed planswere also submitted with the Application.

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Filed and Attested byPROTHONOTARY

29 JAN 2013 03:14 pmR. WEISS

2. According to the Application, the Subject Property consists of vacant land and an abandonedbank building. The Applicant intends to use the Subject Property for multifamily residential.More specifically, the Application seeks to consolidate five (5) lots into one lot for theconstruction of the following:

3 structures of three (3) Story Multi Family housing for twenty-five (25)families/units. Building one (1) Facing North Front Street, three (3) storystructure comprised of 8 dwelling units for sixteen (16) families. Buildingtwo (2) Facing Morris Street, three (3) story structure comprised of 3dwellings for six (6) families. Building three (3) Facing Hope Street three(3) story structure comprises of 2 dwellings for (3) families/unit with oneunit over a community space. Buildings are slab on grade with nobasement. Maximum Building Height is 3Q'-7" See Application.

3. On March 9,2012, the Application was refused by L&I (the "Notice of Refusal").According to the Notice of Refusal, the Subject Property is located in the C-2Commercial Zoning District L&I refused the Application for the following reasonsand pursuant to the following sections of the Philadelphia Zoning Code ("ZoningCode"):

14-303(2)(a) - The proposed attached buildings used solely for dwelling purposes,are not permitted in this Zoning District.

14-1403(l)(a); 14-1402(l)(b) - With every multiple dwellings erected after theeffective date of this ordinance, there shall be provided on the same lot an areacontaining parking spaces for the use of the occupants of the dwelling; thereforetwenty-five (25) accessory parking spaces are required, whereas only ten (10)spaces are provided.

14-303 - The proposed multiple structures is not permitted in the district. SeeNotice of Refusal.

4. On March 15,2012, Kramer Marks Architects, on behalf of Applicant filed a Petitionof Appeal to the Zoning Board ("Petition of Appeal") against the Department'sNotice of Refusal. According to the Petition of Appeal, the Applicant appealed theDepartment's Notice of Refusal for the following reasons:

The attached multifamily use is consistent with attached multifamily propertiesdirectly behind the Subject Property which front on North Howard Street withrear yards facing the [Subject] Property and additional such housing on the comerof Howard and Norris Streets. The Subject Property is located one block from theMarket-Frankford El Station at Front and Berk thus lessening the need for carsand parking. Under comparable district (CMX2) in new Zoning Ordinancemultifamily use requires 3 parking spaces for each 10 units. See Petition ofAppeal.

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5. The Board held a public hearing on August 8,2012 (the "Hearing"). The Applicant wasrepresented by Mr. Darwin Beauvais, Esq. Many people filed Appearance Statements at theHearing both in favor of and against the proposed development of the Subject Property. Therecord before the Board includes, without limitation, the following documents:

a. Photographs of the Subject Property and the surrounding neighborhood;b. Zoning Site Plan and revised Zoning Site Plan showing, among other things, the

relocation of the proposed community facility along the first floor at the corner ofFront Street and Norris Street;

c. Renderings of the proposed development of the Subject Property;d. Floor plans;e. Deed and Tax Clearance Certificate;f. Zoning Map, Zoning Code and aerial photo;g. A Building Structural Survey prepared by William D. Elton, PE of Elton &

Thompson P.C., Structural Consultants, dated May 3,2012 with regard to theexisting buildings on 1942 N. Front Street (the "Applicant's Engineering Report");

h. Multiple letters of support/non-opposition as well as a multi-page petition ofsupport of the proposed development of the Subject Property (represented by theApplicant to consist of 282 signatures);

i. A "Project Fact Sheet" submitted by the Applicant;j. "Technical Memorandum: Retail/Commercial Market Assessment Proposed

Development Site 2000 Block of North Front Street" prepared by Urban Partnersfor Women's Community Revitalization Project dated June 2011 (the "TechnicalMemorandum");

k. Multiple letters of opposition to the proposed development of the SubjectProperty including, without limitation, a letter from Karen D. Lewis dated August1,2012 with attachments; and

1. Petition in opposition to the proposed development of the Subject Property.

6. Mr. Beauvais opened up the testimony at the Hearing on behalf of the Applicant. He told theBoard that the proposed development of the Subject Property represents a re-development ofa blighted and abandoned piece of property to create twenty-five (25) affordable rental unitsin the North Square section of the City. See N.T. 8/8/12 at 3. The plan is to develop theSubject Property with thirteen (13) three-bedroom units, eleven (11) two-bedroom units andone (1) four-bedroom unit. See N.T. 8/8/12 at 4. Three (3) of the units will be wheelchairaccessible and one (1) will accommodate the hearing and vision impaired. See N.T. 8/8/12 at4. Each unit will have a washer and dryer, garbage disposal and central air conditioning. SeeN.T. 8/8/12 at 4. The proposed development also calls for a community space along N. FrontStreet with an office for support of services as well as ten (10) off-street parking spaces,bicycle parking and landscaping. See N.T. 8/8/12 at 4. According to a letter dated July 24,2012 from Women's Community Revitalization Project, the design of the project was re-doneto move the community space from Hope Street to the comer of N. Front Street and NorrisStreet in response to the community's request for commercial space along Front Street whichis a commercial corridor. According to the letter, "the community room would run the lengthof roughly two typical commercial storefronts along Front and the length of one typicalstorefront along Norris. This unit will be used for several purposes, including office space

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and community gathering space." The price range for the units will be from $400.00 to$600.00 per month. See N.T. 8/8/12 at 4. The project has the support of the PennsylvaniaHousing Finance Agency, the Federal Home Loan Bank and the Housing Trust Fund. SeeN.T. 8/8/12 at 3. The developer of the project will be the Women's CommunityRevitalization Project, which has developed and constructed over 240 affordable homesthroughout the City. See N.T. 8/8/12 at 4.

7. With respect to the refusal for multiple structures on a lot, Mr. Beauvais explained that"because we are consolidating five lots into one to create enough common area toaccommodate parking and open space, if we were to do otherwise, right, we could only getfive units, one per lot, and — and that will prevent any development of this kind fromhappening." See N.T. 8/8/12 at 5.

8. Next to testify on behalf of the Applicant and in support of the proposed development of theSubject Property was Jeremy Philo, architect at Kramer Marks Architects. He described theproposed layout of the development and the units themselves. See N.T. 8/8/12 at 6,7. Thesmallest unit will be a two-bedroom at around 850 square feet. See N.T. 8/8/12 at 7. Thelargest unit will be almost 1500 square feet. See N.T. 8/8/12 at 8.

9. With respect to the refusal for parking, Mr. Beauvais testified as follows:

We believe this is enough considering that the project sits in a transit-orienteddistrict, where both the elevated train, specifically the Berks Station, and busstops are both within the same block of the site, therefore, we believe that ourparking ratio is fine and very suitable. In fact, what I also realized, in twoweeks with the Board ~ with the new code coming in under commercialdesignation, I think it's now going to be called CMX-2, parking will not berequired. See N.T. 8/8/12 at 8,9.

10. With respect to the refusal for attached buildings used solely for dwelling purposes, Mr.Beauvais testified as follows:

Women's Community Revitalization Project took significant amount of time toselect this site, and in doing so, they did a market study that was commissionedin order to ascertain whether commercial activity was still applied. Now, as Imentioned before, we have with us Mr. James Hartley, from Urban Partners,who actually produced the study, which is marked Exhibit-16. And I'm hopingthat he can come up to introduce himself and give us a summary of hisconclusions. See N.T. 8/8/12 at 9.

11. Mr. Hartley then testified. He was first qualified as an expert in economic planning fordevelopment. See N.T. 8/8/12 at 10. The Technical Memorandum which was prepared byMr. Hartley was then introduced into evidence as Exhibit-16. According to the TechnicalMemorandum and Mr. Hartley's testimony, the Subject Property and the area in which it islocated cannot support retail development. See N.T. 8/8/12 at 10-13; see also TechnicalMemorandum. In particular, Mr. Hartley testified "that there was very little opportunity to

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imagine any substantial retail development occurring on this block because of the shrinkageof the adjacent district and the increased competition coming upon on Girard." See N.T.8/8/12 at 12. Moreover, the Technical Memorandum concludes that "a decision not toinclude retail/commercial space in this development would be justified by the findings of thisreport." See Technical Memorandum at page 9.

12. Mr. Beauvais then testified that given Mr. Hartley's conclusions "I would have to say that wedo have a hardship because the area has been struggling with this blighted structure forseveral years, which has outlived its usefulness and has been clearly for sale. It sits as andeyesore. In order to do the amount of work needed for a proper rehab, the cost becomesprohibited for any developer or retailer to rehab the property." See N.T. 8/8/12 at 13. Withrespect to the existing bank building on the Subject Property, the Applicant's EngineeringReport (Exhibit-13) concluded that the buildings are in "severely deteriorated, precariouscondition, and, in my opinion beyond the point of being feasible for rebuilding, and areunsafe at some locations. My recommendation is demolish." See Applicant's EngineeringReport; see also N.T. 8/8/12 at 14.

13. With regard to no negative impact on the surrounding neighborhood, Mr. Beauvais testifiedas follows:

Now, given the fact that we're providing parking, open space, affordable housing,landscaping and breathing life into an area that has been blighted for years, we submitthat granting our variance will not negatively impact the area or the community. Now,with respects to the community, the principals did meet with several communityorganizations, which resulted in letters of support, which is marked as Exhibit-14. Wealso obtained signatures. You'll see a list of petitions with signatures of over 280neighbors who support this project. See N.T. 8/8/12 at 14.

14. In particular, Mr. Beauvais pointed out two letters of support, one from Youth United ForChange and the Norris Square Civic Association, which is the registered communityorganization. See N.T. 8/8/12 at 16. According to those letters, copies of which are part ofthe record, the proposed development will create and preserve much needed affordablehousing and will help to revitalize a dangerous corner in the community.

15. The next person to testify was Ms. Tara Cologne, 144 West Norris Street. She is a residentof the community. She believes that it is unsafe to have "that building there. There is also anabandoned building adjacent on the same — when you are walking on Norris, there is thisabandoned building on my side where I live, 144. On the opposite side there is anotherabandoned building." See N.T. 8/8/12 at 17. Ms. Cologne continued: "To be quite honest,I'd rather have residents there, where my girls can knock, G-d forbid, if anything happens,and there is actual human beings all hours of the night that can actually come to their aid."See N.T. 8/8/12 at 18.

16. Next to testify was David Robinson, 164 West Norris Street, who told the Board that theSubject Property is "nothing but a blighted building. It is a trash heap; it smells like urinemost of the time to walk past..." See N.T. 8/8/12 at 18. The next two people to testify in

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support of the proposed development were in favor of the fact that it will provide muchneeded affordable housing and, in particular, housing for people with disabilities. See N.T.8/8/12 at 19,20. In particular, Ms. Patricia DeCarlo, executive director of Norris SquareCivic Association testified that the cost of rentals "have gone sky high, and there is a realneed for affordable housing because we still have a lot of low income families in theneighborhood. So it will be a great use." See N.T. 8/8/12 at 20,21.

17. Next to testify was Dan Dunphy from Councilwoman Quinones Sanchez's office. TheCouncil woman supports the proposed development of the Subject Property. See N.T. 8/8/12at 23.

18. First to testify in opposition to the Application was Andy Guerrero from East KensingtonNeighborhood Association ("EKNA"). EKNA would like more commercial and are againstany residential on the first floor. See N.T. 8/8/12 at 24. EKNA has been trying to revitalizethis corridor "and we feel that if they put residential on the first floor, it's going to definitelyset us back to attract more businesses." See N.T. 8/8/12 at 25. He said that the vote ofEKNA was sixty-one (61) opposed and twenty-one (21) in support. See N.T. 8/8/12 at 26.

19. Next to testify in opposition was Jordan Rushie, Esquire on behalf of the Fishtown NeighborsAssociation ("FNA"). FNA "overwhelmingly" voted in opposition to the Application. SeeN.T. 8/8/12 at 29. One of FNA's concerns was the demolition "of a historic building whenthere is empty sites nearby." See N.T. 8/8/12 at 29. FNA is concerned that there is aninsufficient mix of uses proposed for the Subject Property. See N.T. 8/8/12 at 29. They arealso concerned with density and noise. See N.T. 8/8/12 at 29. FNA believes this is toodangerous a street to put residential. See N.T. 8/8/12 at 29,30.

20. Next to testify in opposition was Carmen Golden, 1918 Hope Street. Parking is a bigconcern for Ms. Golden and other neighbors who live on Hope Street. See N.T. 8/8/12 at 32.Ten (10) parking spaces for twenty-five (25) units is not sufficient. See N.T. 8/8/12 at 32.Being close to the Berk Street Station for the El "makes the parking almost impossible." SeeN.T. 8/8/12 at 33. There is also a school in the area which takes up parking spaces. See N.T.8/8/12 at 33. Her next concern was "population density." See N.T. 8/8/12 at 33. "Now,there is no green space, there is no area planned, which means that they're either going to beoverflowing our streets or they're going to be playing in dangerous areas." See N.T. 8/8/12 at34. Her other concern is trash collection. See N.T. 8/8/12 at 34.

21. Next to testify in opposition was Karen Denise Lewis, 1913 North Hope Street. In additionto her testimony, Ms. Lewis also submitted a letter dated August 1,2012, a copy of which ispart of the record.

22. The Planning Commission testified that the Subject Property is indicated for commercial useon the comprehensive plan, however, the Planning Commission staff had no objection to thegranting of the variances. See N.T. 8/8/12 at 52.

23. Based on the record as a whole, the Board determined that the grant of the requestedvariances with proviso would satisfy the criteria for granting variances set forth in Section

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14-1802(1) and (2) of the Zoning Code. More specifically, and without limitation, the Boardfinds:

a. that because of the particular size and configuration of the Subject Property and itsphysical surroundings, i.e., a vacant lot with a blighted building that needs to bedemolished in an area that cannot support commercial use but that supports transit-oriented development with its close proximity to public transportation, a literalenforcement of the Zoning Code would result in unnecessary hardship;

b. that the conditions which the appeal for a variance are based are unique to the SubjectProperty, in particular being a vacant lot with a blighted building that needs to bedemolished in an area that cannot support commercial use but that does support transit-oriented development with proposed physical improvements that would make it wellsuited for and blend in with the existing neighborhood and provide much neededaffordable housing as well as some commercial space on the first floor;

c. that the variance will not substantially or permanently injure the appropriate use ofadjacent conforming property especially where, as here, the size, design and proposed useof the Subject Property would fit within the character of the neighborhood and, inparticular, would cater to low income families that use public transportation;

d. that the special conditions or circumstances forming the basis for the variance did notresult from the actions of the Applicant but rather from the nature of the Subject Propertyitself and its location in a neighborhood that cannot support a commercial use at thislocation;

e. that the grant of the variance will not substantially increase congestion in the publicstreets especially where, as here, the Applicant demonstrated that the residents of theSubject Property would be from low income families who primarily use publictransportation;

f. that the grant of the variance will not increase the danger of fire, or otherwise endangerthe public safety;

g. that the grant of the variance will not overcrowd the land or create an undueconcentration of population especially where, as here, the community in which theSubject Property is located is in need of low income housing;

h. that the grant of the variance will not have any effect on an adequate supply of lightand air to adjacent property;

i. that the grant of the variance will not adversely affect transportation or unduly burdenwater, sewer, school, park or other public facilities;

j. that the grant of the variance will not adversely affect the public health, safety orgeneral welfare;

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k. that the grant of the variance will be in harmony with the spirit and purpose of theZoning Code; and

1. that the grant of the variance will not adversely affect in a substantial manner theComprehensive Plan for the City especially where, as here, although the Subject Propertyis indicated for commercial use on the comprehensive plan the proposed residentialdevelopment of the Subject Property (with some commercial space on the first floor) issupported by the Planning Commission.

24. After carefully considering all of the evidence and testimony provided at the Hearing, as wellas the information provided before and at the Hearing, the Board voted unanimously toapprove the variances with the proviso that it be based on the plans stamped by the Board onAugust 14,2012. Accordingly, the Board issued its Notice of Decision on August 14,2012granting the requested variances with proviso.

Conclusions of Law

1. The issues before the Board are whether variances should be issued for the reasons set forthin the Notice of Refusal.

2. For the reasons described in the Findings of Fact above, Applicant petitioned the ZoningBoard to approve the requested variances.

3. Pursuant to§14-1801(l)(c)ofthe Zoning Code, the Board may, after public notice andpublic hearing, authorize upon appeal in specific cases such variance from the terms of theZoning Code as will not be contrary to the public interest where, owing to special conditions,a literal enforcement of the provisions of the Zoning Code would result in unnecessaryhardship, and so that the spirit of the Zoning Code shall be served and substantial justicedone, subject to such terms and conditions as the Zoning Board may decide.

4. Sections 14-1802(1) and (2) set forth the criteria the Board must consider in decidingwhether to grant a variance. These include, without limitation, the following:

(a) that because of the particular physical surrounding, shape ortopographical conditions of the specific structure or land involved,a literal enforcement of the provisions of [the Zoning Code] wouldresult in unnecessary hardship;

(b) that the conditions which the appeal for a variance is based areunique to the property for which the variance is sought;

(c) that the variance will not substantially or permanently injure theappropriate use of adjacent conforming property; [and]

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(d) that the special conditions or circumstances forming the basis forthe variance did not result from the actions of the applicant;

Zoning Code at § 14-18G2(l)(a),(b),(e) and (d).

5. The Supreme Court of Pennsylvania has defined a variance as "a departure from the exactprovisions of a zoning ordinance... granted where a strict enforcement of the literal terms ofthe ordinance will result in unnecessary hardship upon a particular property over and abovethe hardship that may be imposed... on all properties in that community." Brennan v.Board of Adjustment, 409 Pa. 376, 197 A.2d 180 (1963).

6. The burden of proof in obtaining a variance is upon the landowner. Evidence in support ofthe variance must be presented showing a hardship unique or peculiar to the property. ValleyView Civic Association v. Zoning Board of Adjustment, 501 Pa. 550,462 A.2d 637 (1983),Yeager v. Zoning Hearing Board, 779 A.2d 595 (Pa. Cmwlth. Ct. 2001).

7. To establish entitlement to a variance, an applicant must show an unnecessary hardshipresulting from the property's unique physical conditions or circumstances; that such hardshipis not self-imposed by the applicant; that granting the variance would not adversely affect thepublic health, safety or welfare; and that the variance, if granted, would represent theminimum necessary to afford relief. Alpine, Inc. v. Abington Twp. Zoning Hearing Board,654 A.2d 186 (Pa. Cmwlth. 1995).

8. Unnecessary hardship is established only where it is shown that compliance with the zoningordinance could render the property practically useless. Ignelzi v. Zoning Board ofAdjustment of the City of Pittsburgh, 61 Pa. Commw. 101, 433 A.2d 158 (Pa. Cmwlth.1981)." Evans v. Zoning Hearing Board, 732 A.2d686,691 (Pa. Cmwlth. Ct. 1999).

9. The record before the Board demonstrates that the literal enforcement of the Zoning Codeagainst the Subject Property would result in an unnecessary hardship due to the physicalsurroundings and particular size and configuration of the Subject Property; that the proposedresidential use of the Subject Property (with some commercial space on the first floor) willhave no adverse effect on the public health, safety or general welfare; and that the variancesbeing requested represent the minimum variances that will afford relief at the leastmodification possible especially where, as here, the Applicant has demonstrated that theSubject Property cannot be used as zoned and where the existing building is blighted,dangerous and needs to be demolished.

10. The Applicant presented sufficient evidence demonstrating the unique nature of the SubjectProperty. In particular, the Applicant demonstrated that the Subject Property cannot complywith the requirements of the Zoning Code set forth in the Notice of Refusal because theSubject Property cannot be used for commercial use. Moreover, the Applicant demonstratedthat the parking being provided was more than adequate for the proposed residentialdevelopment especially where the residents will be from low-income families and willprimarily use public transportation. The Applicant also demonstrated that the proposedconsolidation of five (5) lots into one (1) with multiple buildings along with parking and

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common areas (including landscaping) was the minimum needed to properly develop theSubject Property otherwise the Subject Property could not be used as zoned. The Applicantalso demonstrated that the existing buildings on the Subject Property were blighted,dangerous and needed to be demolished in order for any development to occur.

11. The evidence demonstrates that the proposed use of the Subject Property will not overcrowdthe neighborhood. The evidence supports the conclusion that the proposed use of the SubjectProperty is consistent with the other uses in the neighborhood in which the Subject Propertyis located and will provide much needed affordable housing to the community. In otherwords, the proposed use of the Subject Property would be in harmony with the surroundingneighborhood. Clearly, using the Subject Property for low-income housing represents ahigher and better use of the Subject Property which cannot be used as zoned and has beennothing more than vacant ground, a blighted building and an attractive nuisance for manyyears.

12. The Applicant provided sufficient evidence to overcome its burden of proof to demonstratewhy the Subject Property has sufficient off-street parking. The Applicant also providedsufficient evidence to support the need for multiple buildings on one lot. Moreover, theApplicant provided sufficient evidence that the Subject Property could not be used as zoned.

13. Such evidence demonstrates that the special conditions or circumstances forming the basisfor the variance did not result from the actions of the Applicant. Furthermore, this evidenceestablishes that the conditions which the appeal for the variance are based are unique to theSubject Property. As a result, the Board determined that literal enforcement of the ZoningCode would result in an unnecessary hardship. The Board also determined that the varianceswere the minimum variances necessary to afford relief.

14. The Board also determined that granting the variance would not (i) substantially orpermanently injure the appropriate use of adjacent conforming properties; (ii) substantiallyincrease congestion in the public streets; (iii) increase the danger of fire, or otherwiseendanger the public safety; (iv) overcrowd the land or create an undue concentration ofpopulation; (v) impair an adequate supply of light and air to adjacent property; or (vi)adversely affect transportation or unduly burden water, sewer, school, park or other publicfacilities.

15. The Board concluded that the testimony, as well as other documentary evidence support theconclusion that the granting of the variances with the proviso will keep the Subject Propertyin harmony with the spirit and purpose of the Zoning Code and will not (i) substantially orpermanently injure the appropriate use of adjacent conforming property; or (ii) adverselyaffect the public health, safety or general welfare.

16. In granting the variances, the Board carefully weighed all of the evidence before it. TheBoard determined that the Applicant had satisfied its burden of proof.

17. Based upon the record as a whole, the Board concludes that Applicant has met its burden ofestablishing entitlement to the variances as set forth in Sections 14-1802(1) and (2) of the

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Zoning Code. More specifically, the Board determined that the issues presented in thismatter are unique to the Subject Property, the proposed use of the Subject Property isconsistent with the area surrounding the Subject Property, that literal enforcement of theZoning Code would create an unnecessary hardship to the Subject Property, that there wouldbe no adverse impact on the public health, safety or general welfare and that the variancesrepresent the minimum variances that will afford relief at the least modification possible.

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BOARDS D IV IS ION Fax:215-686-2565 Jan 29 2013 13:16 P.02

18. For the foregoing reasons, the Board concludes that the requested variances should begranted.

Respectfully submitted,

Marf Jdife McKinneyZoning Board Administrator

Lynette M. Brown-Sow

Samuel Staten, Jr.

Martin Bednarek

VOTE OF THE BOARD

Yes with proviso

Yes with proviso

Yes with proviso

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