Planned Chestnut Hill dialysis center gets zoning O.K.

City Council passed a bill today that would allow a controversial dialysis center to open in Chestnut Hill.

The proposed center, to be located on 10 E. Moreland Ave., pitted City Council, the city’s Planning Commission and the Chestnut Hill Community Association against the Chestnut Hill Residents Association and neighbors living near the site. Introduced by Councilwoman Donna Reed Miller, the bill would rezone the Moreland Avenue parcel for commercial uses — it is currently zoned for industrial ones — thereby permitting the center to move in and operate at any hour of the day.

The Residents Association and neighbors took issue with the fact that the company, Fresenius Medical Care, plans to operate until 9 p.m. six days a week; the compromise they’d hoped for would allow the center to be open until 9 p.m. only three days a week. The folks in favor of the dialysis center argue that it would create jobs, enliven a “dead zone,” and be consistent with the area’s current zoning.

Peter Burke, one of the bill’s critics, says he isn’t surprised it passed.

“There’s no way the residents can win,” he says. “Not against developers, attorneys, City Council, the Zoning Board and the Chestnut Hill Community Association.”

Fresenius’ attorney, Carl Primavera, was also expecting the bill to pass.

“It’s no surprise. At the public hearing, there was a great amount of support for it,” he says. “All the various city agencies said it was a good idea.”

Earlier this year, Burke and his wife, Susan, filed a lawsuit against the Zoning Board of Adjustment for quietly removing a proviso in Fresenius’ zoning variance, which would have guaranteed that the center operate until 9 p.m. only three days a week. That case, still scheduled for March 7, 2011, put the project on hold — which prompted Miller to introduce the bill that Council passed today.

The neighbors and Residents Association believe that Miller’s bill circumvents their right to due process. At last week’s hearing for the bill, however, Councilman Bill Greenlee said that if the court ruled in favor of the Burkes, it would override Miller’s legislation.

“That’s not true,” says Burke. “Our appeal is to the Zoning Board, and this bill took it out of the hands of the Zoning Board and gave it to Council. So we don’t know how we can continue along those lines.”

Primavera agrees with Burke, noting, “If the judge overrules the Zoning Board on the zoning variance, we would still have a permit under the new zoning. Now that it’s zoned as commercial, it’s a whole new world. So it becomes a moot point.”

Burke hasn’t decided whether he’ll still pursue the lawsuit, or another one.

“We could take action against Council for interfering with the legal process,” he says. “But that’s not a cheap thing to do. We don’t have the big bucks that a corporation can throw at it.”