On Tuesday night, the Chestnut Hill Community Association’s Development Review Committee voted against supporting Herbiary’s request for a variance to continue using the space at 133 E. Mermaid Lane.

by Wesley Ratko

The dispute between residents of E. Mermaid Lane and Herbiary, the Chestnut Hill-based herbal emporium that had begun holding classes in a garage at the rear of 133 E. Mermaid Lane, took a new twist Tuesday night when the Chestnut Hill Community Association’s Development Review Committee voted against supporting Herbiary’s request for a variance to continue using the space.

The decision came after more than an hour of testimony and discussion between near neighbors, Heribary owners Maia Toll and Andrew Celwyn, the owner of 133 E. Mermaid Lane, Ellen Deacon, and the DRC. Officially, Herbiary is seeking support for a zoning variance to accommodate six residential units, one more than what is allowed under the current zoning.

The real issue, however, is whether Herbiary would be allowed to continue holding classes in the converted garage building at the rear of the property. These classes are seen by neighbors to be a commercial or business use with no place on a residential street. Neighbors said that the the presence of so many strangers gathering just beyond their backyards was a violation of their privacy.

At its February 7 meeting, the Land Use Planning and Zoning committee of the CHCA voted to support Herbiary’s zoning variance on the condition that all future meetings on the property would have to conclude no later than 5 p.m.

That proviso was met with skepticism from the neighbors, who told DRC members that an unspecified group had its monthly board meeting on the property – which was unrelated to Herbiary’s business.

“I don’t believe any proviso could ever be enforced,” said neighbor Kristopher Jacobson, who claimed other groups have held meetings and lectures in the space in the time since Herbiary has rented the space.

Jacobson said that the increased activity at Deacon’s property prompted him to report two violations to Licenses and Inspections– one for the sixth apartment and one for the business use.

Jacobson described the business use as “inherently inappropriate for a residential property.” He told the committee that the neighbors believe residential uses should far outweigh non-residential use in a residential neighborhood.

He argued that Herbiary’s business has not been clearly defined and said that the confusion created by the city’s response to the zoning issue with a refusal for residential spaces instead of the issue of running a business on the property was being used by Herbiary to “distort the orderly legal process necessary to resolve the issue.”

According to Jacobson, the only one other business has ever operated on the site – a stone mason named Marcelino, who kept his trucks in the garage building and operated during regular business hours out of the office, which has since been converted to a sixth, unlawful apartment. Jacobson said Marcelino respected the residential character of the property.

All near neighbors present Tuesday night agreed that the presence of Herbiary adversely affected their use of their back yards.

“It’s a quality of life issue!” said one.

Ellen Deacon, the owner of 133 and 127 E Mermaid Lane, appeared distraught in responding to the criticism of her neighbors.

“I’m so deeply sorry that we weren’t able to talk about this earlier,”she said, explaining that she hasn’t been able to get any of the neighbors to sit down and talk to her.

Deacon said that renting the space to Celwyn and Toll was primarily driven by a desire to preserve a plot of land just to the north of these properties that she and others repeatedly referred to as a “community garden.” She said it was never really about business, but instead part of a larger plan to create a community on the site.

“[It’s] an investment in people who care about the Earth,” she said.

Deacon explained that because the stone mason had been a presence on the property for so long, she explained that she believed any commercial activity on the site since then has been okay.

“I honestly thought I wasn’t violating any zoning,” she said.

Celwyn said neighbors had approached him several months ago and asked him to stop conducting business.

“We’re moving forward as best we can with what L&I gave us,” said Celwyn. “We’re willing to work with the committee and the neighbors to make the business palatable.”

Celwyn refuted claims made by the neighbors that the commercial space was being expanded. Instead, with the conversion of the office to residential space, it was being contracted. Now the only commercial space is the garage building being used to teach classes.

He also took issue with the neighbors’ claim that the use was educational, not commercial in that they don’t grant any degrees.

“It’s no different than a Zumba class,” he said.

The committee discussed splitting the issue into two motions but, on the advice of Joyce Lenhardt, kept it as a single motion. “The issues are just too muddled,” she said.

The committee voted to support the zoning variance that would permit the sixth apartment, but did not support Herbiary’s continued use of the property.

The issue will now move on to the Chestnut Hill Community Association Board of Directors for review and a final determination. That meeting is scheduled for Thursday, February 28 at 7:30 pm in the Chestnut Hill Library.

A hearing before the Zoning Board of Adjustment is scheduled for March 5.

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