Will ruling end long dispute between Wilmington restaurant, neighbors?

A recent decision by Wilmington’s zoning board has settled a yearslong dispute between neighbors and an Italian restaurant in the Forty Acres community with board members denying Scalessa’s Old School Italian Kitchen’s request to sell alcohol and turn an adjacent lot into commercial parking.

Nearly 40 impassioned speakers – over a dozen of them close neighbors to the restaurant at North Lincoln and Shallcross streets and many others frequent patrons of the business – crowded a city Zoning Board of Adjustments’ virtual meeting Monday to make their case regarding Don Scalessa’s variance requests.

While homeowners living in the immediate area of the restaurant argued allowing Scalessa to serve beer and wine would negatively impact the “highly residential” character of the Forty Acres neighborhood and does not fit in with the current zoning, over 20 people who spoke in favor of Scalessa’s requests dismissed neighbors’ concerns and lauded the Italian restaurant’s food and owner.

BACKGROUND:Feud between Wilmington neighbors, Italian restaurant reignited

FOUR YEARS AGO:War escalates between Wilmington neighbors, Italian restaurant

Scalessa failed to show how denying the variance for selling alcohol would create an unnecessary hardship for the business, board chair and city solicitor Bob Goff said. Nor was anything presented that makes the case for why it’s necessary to turn a residentially zoned parcel into commercial parking, he said.

The restaurant is in a residentially zoned community and is considered nonconforming due to past uses of the property as restaurant and takeout establishments. Nonconforming uses are to be strictly regulated and “permitted only under rigid controls,” city code states.

Rich Katz, a chef and manager at Scalessa’s, testified that the business was able to weather the negative impacts of the pandemic, but Scalessa doesn’t turn a huge profit at the local restaurant.

“Any restaurant, the margins are very, very small. Donnie does not live off the revenue from this restaurant,” he told board members. “I don’t have those records in front of me. I’d say the restaurant is profitable, and when I say profitable, I mean a few thousand dollars per month.”

Goff said the courts have already ruled that adding alcohol to a restaurant is not a permitted expansion of a nonconforming use. To grant a variance for nonconforming uses, the property owner must present an “economic infeasibility to maintain the property at its current status.”

Nothing was presented to show that turning the residential lot into commercial parking was necessary, either, Goff said, which would require Scalessa to show that none of the permitted uses were economically feasible.

“The fact that it would relieve parking, that by itself isn’t a basis,” Goff said.

The zoning board’s unanimous decision to deny Scalessa’s two variance requests centered on city code, which does not allow retail and restaurants as a matter of right in the Forty Acres community and dictates expansions on nonconforming uses should be limited, with the goal of gradually eliminating uses that are incompatible with the zoning.

“At the bottom of all this is a provision of law which says that nonconforming uses in residential areas are to be looked at rigidly,” Goff said. “What we’ve heard are wonderful things about the owner and food. The fact is this is an R3 district. I can’t speak to what happened at other properties and other locations. We have to operate based on the evidence we receive here.”

Scalessa attempted to acquire a variance to sell alcohol at the restaurant four years ago, but his efforts were stymied by neighbors who said the Wilmington business owner has disregarded civic rules since opening and was behind on property taxes – the latter disqualified Scalessa from pursuing the variance.

In the years since, Katz has said Scalessa stepped back from the day-to-day operations and he and Scalessa’s daughter, Alicia Scalessa, took on daily operations and attempted to address neighbors’ concerns.

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Will ruling end long dispute between Wilmington restaurant, neighbors?

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