Council could make dialysis center legal

Featured Post, News November 23, 2010 0 Comments

Council could make dialysis center legal

The site of the proposed Fresenius dialysis center from Winston Rd.

by Pete Mazzaccaro
Neighbors of the proposed dialysis center at 10 E. Moreland Ave. who tried to restrict the center’s weekly operating time by nine hours seem poised to lose all available remedies if a City Council bill changing the property’s zoning is ratified.

City Council Bill 100753 was proposed by district Councilwoman Donna Reed Miller on Nov. 4 and recommended by the city’s Zoning Commission last Tuesday, Nov. 16. The bill would change the property’s zoning from industrial to C2 commercial. That zoning change would give Fresenius, the dialysis center operator, by-right permission to open.

William Neshiewat, Miller’s director of legislation, said the bill was a an easy decision because it promoted a use that the councilwoman supports – a dialysis center that will serve a growing population in Northwest Philadelphia – and will restrict the current property’s zoning in a way that should be beneficial to neighbors in the future.

“We’re scaling the zoning back,” Neshiewat said. “Under the current zoning, you could have a factory open 24-hours a day.”

The industrial zoning designation did not allow for a medical office, which compelled Fresenius to request a zoning variance for the use earlier this year. The Chestnut Hill Community Association supported that variance, but neighbors opposed to the variance testified at the original Zoning Board of Adjustments hearing last summer.

The ZBA originally conceded to neighbors and granted Fresenius a variance to operate, but with a proviso prohibiting the facility from keeping its doors open past 6 p.m. on Tuesdays, Thursdays and Saturdays. Later, Fresenius asked the ZBA to reconsider the restriction, and the ZBA reversed course – without a hearing – removing the proviso and prompting neighbors to file their appeal.

In July, Fresenius’ attorney Carl Primavera explained Fresenius’ request for reconsideration this way:

“Why would Fresenius spend a month with the community association and plan on a $2 million, state-of-the-art facility only to get handcuffed in this way? It’s like saying you’re going to build an emergency room that is only open from 9 to 5.”

In August, neighbors of the proposed dialysis center filed an appeal in Philadelphia court to reverse the ZBA’s reversal on the grounds that the ZBA did not have the right to change its mind without a hearing. Their appeal was supported by the Chestnut Hill Residents Association, which also hired an attorney, local lawyer Darlene Heep.

But Miller’s bill would appear to make the appeal a moot point.

Ron Recko, a member of the CHRA, told the local that he’s not impressed with Miller’s reasoning behind the zoning bill.

“They bypassed the appeal,” Recko said. “Fresenius figured they‘d lose in court so they go to Donna Reed Miller.”

Councilman at-large Frank Rizzo’s chief of staff Stewart Graham – a Chestnut Hill resident – said he understands neighbors’ frustrations but that he did not expect council to vote the bill down. He said Rizzo has not taken a position on it.

“There is such a thing as councilmanic courtesy,” Graham said, referring to the unwritten rule that district councilpersons tend to call the shots on zoning in their districts. “After all, these same people wouldn’t want to be crossed the next time they have a proposal for their districts.”

The best bet for neighbors, he said, would be to try and change Miller’s mind.

“They will have the chance to go to the hearing and be heard,” Graham said.

Moreland Avenue resident Peter Burke, who filed the initial appeal on behalf of himself and other neighbors – more than 70 signed a petition to try and force the center to restrict its hours – was not optimistic about his chances to stop Fresenius from getting its way. He attended the Zoning Commission hearing on the bill last Tuesday and called it “rubber stamp city.”

“This was a done deal,” he said. “It’s going to be a tough road to stop it now. When it goes before council, we will have a group of people down at that hearing to let them know we don’t like it.

The bill is scheduled to be reviewed by council’s Rules Committee at 10 a.m. Wednesday, Dec. 8.

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