Another court battle brewing in long Bustleton zoning fight

If the fight over the use of one little Bustleton house were a real­ity TV show, it would be called Zon­ing Wars. So far, there have been sev­er­al epis­odes, and an­oth­er is in pro­duc­tion now.

In the latest, Phil­adelphia’s Zon­ing Board of Ad­just­ment denied a vari­ance ap­plic­a­tion that would al­low the own­er of a Hal­de­man Av­en­ue home to make dent­al re­tain­ers in the res­id­en­tially zoned prop­erty, ac­cord­ing to the pres­id­ent of the Great­er Bustleton Civic League. The own­er’s law­yer said his cli­ent will go to court to ap­peal that de­cision.

In an Aug. 6 email, league pres­id­ent Jack O’Hara told mem­bers the zon­ers have re­versed their 2012 de­cision to al­low Flore An­dresi a three-year vari­ance to con­tin­ue hand­craft­ing dent­al re­tain­ers at 9997 Hal­de­man Ave. The league has long op­posed An­dresi’s ap­plic­a­tion, main­tain­ing that per­mit­ting his busi­ness to op­er­ate in a house threatens the res­id­en­tial char­ac­ter of the street.

An­dresi’s at­tor­ney, Shawn Ward, stated Fri­day that his cli­ent has dir­ec­ted him to ap­peal to the Court of Com­mon Pleas to re­verse the zon­ing board’s latest de­cision. Ward has ar­gued that the house near the busy in­ter­sec­tion of Hal­de­man and Red Li­on Road, a bank and a fast-food res­taur­ant is not suit­able as a res­id­ence, so An­dresi should be al­lowed to con­tin­ue his busi­ness there.

The league’s in­volve­ment in the pro­cess began in fall 2012. An­dresi needed a vari­ance to op­er­ate leg­ally so he had asked the league to sup­port his ap­plic­a­tion. In­stead, the or­gan­iz­a­tion’s mem­bers voted over­whelm­ingly to op­pose it. In Novem­ber 2012, that op­pos­i­tion didn’t stop zon­ing board mem­bers from giv­ing An­dresi his vari­ance — but just for three years.

Urged on by City Coun­cil­man Bri­an O’Neill (R-10th dist.), league mem­bers took the zon­ing board to court and won. In Ju­ly 2013, Com­mon Pleas Court sent the case back to the zon­ers, in­struct­ing them that the ap­plic­ant must prove “hard­ship,” which means he had to show the prop­erty could be used only for his busi­ness. An­dresi fi­nally got his hear­ing on Ju­ly 23. 

The ZBA denied An­dresi’s ap­plic­a­tion on Ju­ly 29. When O’Hara an­nounced the zon­ers’ de­cision to league mem­bers, he told them An­dresi could file an ap­peal. That’s go­ing to hap­pen, Ward wrote in an Aug. 8 email to the North­east Times.

“We be­lieve we suc­cess­fully demon­strated that giv­en the loc­a­tion of the sub­ject prop­erty at one of the busiest corners in North­east Phil­adelphia, sur­roun­ded by com­mer­cial es­tab­lish­ments, and tre­mend­ously in­tense traffic, re­quir­ing strict com­pli­ance to the res­id­en­tial use stand­ards of the Zon­ing Code will res­ult in an un­ne­ces­sary hard­ship to the prop­erty,” Ward wrote. “The present cir­cum­stances render the prop­erty prac­tic­ally use­less as a res­id­en­tial dwell­ing as nobody will wish to use this prop­erty as such.”

Dur­ing the Ju­ly 23 hear­ing, Ward presen­ted an ex­pert wit­ness, sub­urb­an real es­tate agent Kar­en Door­ley, who said the prop­erty wasn’t suit­able as a house. Ward poin­ted out An­dresi’s house is next to a Wendy’s res­taur­ant and across the street from a bank.

Jared Klein, who rep­res­en­ted the league, didn’t dis­pute the loc­a­tion of nearby busi­nesses, but said the re­mainder of the block is made up of res­id­ences. Klein also said the prop­erty has all the mak­ings of a res­id­en­tial use. An­dresi had test­i­fied that he had lived in the home. “Someone can live in this house,” Klein said. “There is no hard­ship.”

“We be­lieve that the testi­mony of Mr. An­dresi and our ex­pert wit­ness clearly demon­strated that this prop­erty is uniquely situ­ated and does not share sim­il­ar char­ac­ter­ist­ics of oth­er homes on Hal­de­man Av­en­ue,” Ward said in his Aug. 8 email. “It is clearly a mis­char­ac­ter­iz­a­tion to claim that the hand­craft­ing of dent­al re­tain­ers us­ing com­mon house­hold hand tools, wire and ac­ryl­ic products is tan­tamount to a man­u­fac­tur­ing plant or fa­cil­ity as claimed by the Great­er Bustleton Civic League.”

Dur­ing the Ju­ly 23 ZBA hear­ing, board mem­ber Samuel Staten Jr. sug­ges­ted the zon­ers had backed An­dresi in 2012 be­cause he was a small busi­ness­man who was liv­ing in the build­ing, and, since there had been no com­plaints about the busi­ness, the board was in­clined to give him three years to keep op­er­at­ing and find an­oth­er loc­a­tion. However, when board mem­bers learned An­dresi no longer lived in the build­ing, their at­ti­tudes seemed to change.

Staten said he said yes to the ap­plic­ant in 2012 be­cause he be­lieved he was liv­ing on the prop­erty, and zon­ing board mem­ber Greg Pastore said zon­ers be­lieved An­dresi’s busi­ness was an ac­cess­ory use to his res­id­ence.

Al­though O’Hara said he knew the war could go on, he was very pleased the league won this last battle.

“This de­cision is a sig­ni­fic­ant ac­com­plish­ment for the GB­CL and we are all truly grate­ful for the out­come,” O’Hara wrote in his email. “The res­id­ents of Bustleton showed their com­mit­ment and de­term­in­a­tion in pre­serving and pro­tect­ing our long es­tab­lished res­id­en­tial areas as they were de­signed. It took a lot of strength for our com­munity to chal­lenge a ZBA rul­ing and we should all feel very proud of the vic­tory.”

After con­fer­ring with his cli­ent, Ward said it’s not over.

“I be­lieve that the Zon­ing Board mis­ap­plied the stand­ard for the grant of a vari­ance in this case as the prop­er test is not wheth­er the prop­erty ‘can be used’ as a single fam­ily dwell­ing,” Ward wrote. “Rather, the prop­er test is, giv­en its unique char­ac­ter­ist­ics, wheth­er the prop­erty will likely, or ever, be used as a single-fam­ily dwell­ing. We sub­mit that it will not, as the prop­erty sat va­cant for sev­er­al years while be­ing act­ively mar­keted for sale. No testi­mony or evid­ence was presen­ted to the con­trary to re­but our po­s­i­tion. Ac­cord­ingly, zon­ing re­lief is ne­ces­sary to af­ford reas­on­able use of the prop­erty.” 

O’Hara said he “was not en­tirely sur­prised” by An­dresi’s de­cision to take his case to court. The league pres­id­ent said he will dis­cuss the case with his mem­bers at their Sept. 17 ses­sion. The league holds no mem­ber­ship meet­ings in Ju­ly or Au­gust.

He said his mem­bers have been “pretty con­sist­ent” in main­tain­ing and fight­ing for their neigh­bor­hood’s res­id­en­tial char­ac­ter. “I don’t think that will change.”

Stay tuned. ••

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