Herbiary wins variance support despite neighbor protests

News January 4, 2013 0 Comments

133 E. Mermaid Lane

by Wesley Ratko

The Land Use Planning and Zoning Committee considered only one item for its first meeting of 2013 – the issue of Herbiary starting a consultation and classroom business in a converted garage at 133 E. Mermaid Lane. The same issue was first discussed at last month’s Development Review Committee meeting.

At issue is whether Herbiary, an herbal remedy business with locations at Reading Terminal Market and 7721 Germantown Ave. can continue to operate its “herbal consultations” practice at the location. Some near neighbors of the property oppose the variance on the grounds that it is a commercial intrusion.

Herbiary owners Andrew Celwyn and Maia Toll returned with their lawyer, Joe Beller, who will represent them before the Zoning Board of Adjustment on March 4, and the owner of the property, Ellen Deacon.

Celwyn and Toll applied for a use variance late last year, which was refused by Philadelphia’s Department of Licenses and Inspections. They are asking the Chestnut Hill Community Association to support their appeal.

An existing use variance from 1956 had allowed a business office to operate out of the main house on what is otherwise a residential street. That office has since been converted into an apartment.

The property itself can be broken down into two parts – the main house along Mermaid Lane, and a carriage house in the rear. This rear building, which has two apartments, abuts a long garage with multiple bays.

Five of those bays have been converted into a single space that Herbiary uses as a classroom. In order for Herbiary to continue operating on site, a new use variance needs to be granted to reflect the nature of the new activity.

The city denied their recent request for such a variance based solely on the existence of the apartment, which brings the total number of living units on site to six. This is one more than what the city recognizes as legal.

Reading from a prepared statement Deacon, who lives in the carriage house, said that she felt she was “operating properly and in good faith.” She said that because previous tenants included a stone mason, a house painter, a landscaper and a construction company, she was willing to consider other uses for the space and never believed Herbiary’s activity would cause concern with the neighbors.

“I have nothing to gain by encouraging activities on any of these Mermaid Lane locations that are not to the benefit of all residents there, my tenants included,” she said.

Toll said there are classes on site roughly five times per month: a 10-person class that meets twice a month, a 20-person class that meets once a month, and an evening class with up to 18 people one evening per month. Classes run from September to June and include the same students throughout: two on weekends, one in the evening, and one floating class that she reserved for guest speakers. Students are directed to park at the Wyndmoor train station at E. Willow Grove Avenue and Wyndmoor Street.

“Our goal is to be a part of this neighborhood,” Toll said.

Nearby neighbors, however, said they were not ready to have a classroom or consultation business next door. They claim that these classes have brought an influx of strangers into the rear area behind their property that intrudes on their privacy and disturbs the residential character of the block.

Steven McGarvey of 127 E. Mermaid Lane read from a statement by Kristopher Jacobson, another near neighbor who was present at the DRC meeting but was unable to attend Thursday’s meeting. Jacobson’s statement indicated that no change to the activities or operating hours of the school would make it an acceptable use because of its public nature.

“There is no configuration that would be acceptable to me,” said Jacobson’s statement, although he said that limiting class time to weekday business hours, keeping the garage doors closed during classes, and prohibiting students from congregating on the pavement outside the garage during break times would be helpful.

Other neighbors said they felt the same way.

“A variance is permanent, but tenants are temporary,” said Stephanie Pashton of 129 E. Mermaid Lane. Both she and McGarvey said that their interests as long-term property owners should be placed above those of Herbiary.

Because the refusal received from the city relates only to the number of dwelling units on the property, Herbiary’s attorney, Beller, argued that the legality of holding classes on site was immaterial to the discussion and all neighbor complaints about the classes should not be the subject of the discussion.

“As far as I’m concerned, there is no problem with the classes that are being taught,” said Beller. “As a neighbor and someone who wants to cooperate, the answer is given to your panel that there would be a willingness to limit [class size].”

Not all neighbors at the meeting were opposed. One near neighbor explained that his property abutted the open space behind the property. This space, which is close to an acre in size, is tended by Herbiary and its customers as a garden. He said he benefitted from the space remaining open.

In a split decision, the committee voted in favor of supporting the variance that would allow six apartments at the site, with the proviso that all classes conducted by Herbiary be over by 5 p.m. This was reached after a failed motion by committee member John Landis not to support the variance.

“I regret having to make this motion,” he said, “but the use of what is private residential space for a public use is a material inconvenience for the neighbors.” He added that where the need to balance the rights of a non-residential use in a residential area was concerned, the neighbors had to take precedence. “I believe everyone has acted in good faith,” he said.

The applicants will return to the DRC for a vote later this month before it goes to the full CHCA board.

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