Zoners discuss change that would allow garage to expand
If an applicant crafts a zoning regulation that effectively applies to only one property, is that spot zoning?
That is question the Planning and Zoning Board (P&Z) must decide with regard to a proposed regulation change in the Corridor Design Development District 4 (CDD-4) on New Haven Avenue, which includes Buckingham Avenue between New Haven Avenue and the railroad tracks.
Attorney John Knuff made the presentation on behalf of Robert's Service Center, 216 Buckingham Ave., near the corner of New Haven Avenue, which is also known as state Rt. 162.
Knuff said that when the zoning regulations were updated in 2003, the zone in which Robert's operates was changed from an industrial zone that permitted commercial garages to the CDD-4 zone, which expressly prohibits vehicle repair centers.
The property was grandfathered, so it is a legal, but non-conforming use. This means the business can continue to operate, but cannot be rebuilt if the building is destroyed, and cannot be expanded at that location.
Knuff said that when the zones were being updated in 2003, business owner Robert Bruneau “was busy running a business” and was not aware of the changes taking place.
“He was surprised he could not use an adjacent property to expand his business,” said Knuff.
Knuff explained that the purpose of the regulation change would be to “allow commercial garages in very strict conditions.” He said the proposal would “render a non-conforming use as conforming.”
According to the zoning regulations, the purpose of the CCD-4 zone is to “provide an aesthetically and functionally smooth transition from the high density uses of Milford Center to the lower density residential neighborhoods in the southeastern section of the city, while supporting New Haven Avenue's role as a vibrant commercial area that provides goods and services to residents and supports the city's tax base.”
Bruneau purchased an adjacent 0.38-acre property in September 2008 at 210 Buckingham Ave., using a limited liability corporation called RMBK LLC. Knuff said another attorney handled that transaction, not realizing the zone had changed, and that the property could not be used for a desired expansion.
Knuff said the Bruneaus responded with “shock and horror” when they realized they could not expand. If the regulation change is approved, Knuff said he would return with a site plan for proposed expansion.
Knuff said that the regulations he drafted prohibit garages from being located on a state highway, require the property to abut the railroad right of way, specify a minimum lot width of 175 feet, a front yard setback of 25 feet, repairs taking place in repair bays that are not visible from the street, that vehicle stored outdoors are screened from the road and adjacent residential properties.
Assistant City Attorney Deborah S. Kelly provided a written opinion to the city Planner David B. Sulkis in a memo dated May 23, in which she explained the concept of spot zoning, and concluded that the P&Z has the power to settle the question.
“On its face, the proposed regulation with its specific geographic parameters would appear to be 'spot zoning,' as the change seeks to allow or otherwise prohibit use of an area which is so conspicuously and narrowly defined that it appeared to only affect a handful of properties. However, the change may be legally acceptable and it may not fall within the technical definition of spot zoning,” wrote Kelly.
Kelly wrote that if the board finds that the proposal affects a small amount of land and is out of harmony with the comprehensive plan, then the application is spot zoning. However, if the zone change is in accordance with the comprehensive plan, even if the affected property is small, then it is within the P&Z's “power and discretion” to make this change to the regulations.
Knuff countered Kelly's opinion by saying that the concept of spot zoning only applies if there is a zone change, and if the proposed change is inconsistent with the Plan of Conservation and Development.
Knuff said this is a regulation change, and added, “This is consistent with the comprehensive plan.”
When asked by the P&Z to render an opinion, Sulkis said there are many examples of special regulations that pertain to only one or two properties and cited the Westfield mall as one example.
Four people spoke in favor of the proposal, three of whom do business with the Bruneaus, saying that the Bruneaus keep the property in good condition.
Gary D'Agostino of Bel-Air Auto Sales said he has been doing business with the Bruneaus for more than 25 years, commenting, “He has been an asset to the community.”
Attorney Winthrop Smith represented property owner Donna Dutko of 236 Buckingham Ave., who is strongly opposed to the regulation change.
Smith said he believes the proposal is spot zoning because it affects only a handful of properties, and cited the city attorney's memo as evidence to support his position.
“This is perhaps the most egregious example of spot zoning that I have ever seen,” said Smith. “This seeks to enhance one person to the detriment of everyone else.”
Smith continued by saying, “They bought the house next door and incorporated the entire rear yard with their property. They have submitted no application. This board should not enable this applicant to remedy all that they did.”
Smith said that complaints filed by Dutko with the P&Z office in October 2011 have not been addressed. The complaints include a light post at 210 Buckingham Ave., the presence of an intermodal container, and the use of the property as a towing facility.
Dutko presented a petition signed by neighbors opposed to the regulation change, saying it would not be in harmony with the regulations. She said a service center is not compatible with the many residential homes in the area.
Dutko she said she watched as the backyard of the house at 210 Buckingham Ave., was torn up and paved, and now “tow trucks are parked illegally on that prop-erty. They say they park indoors, but there are tow trucks all over the backyard.”
An aerial photo from Bing maps, accessed June 20, 2012, show a grassy yard behind 210 Buckingham Ave. extending to the railroad tracks. An aerial photo from Google maps, also accessed June 20, 2012, shows a fence behind and near the house with a paved rear lot containing 10 tow trucks.
In response to Dutko's concerns, Knuff said, “This is the way issues like this are resolved. When a landowner makes an honest mistake, you come before the commission to remedy this.”
Knuff said the complaints have not been acted upon by the P&Z staff because there is “no reason to enforce.” He said the light is several hundred feet from Dutko's property. He said the container is no different than any other retail use. He said towing is necessary to bring disabled vehicles to the facility.
In response, Smith said that Robert's advertises itself as a towing facility that is available day and night.
“It's not just an ancillary use,” said Smith.
When asked about P&Z staff action on the complaints, Assistant City Planner Emmeline Harrigan said, “We have very limited zoning enforcement staff,” which has been in transition with the hiring of a second zoning enforcement officer.
Harrigan said that cases like this where the applicant is trying to remedy the situation,” it's not a good use of resources” to investigate the complaints, but added, “If this does not get approved, we will likely pursue zoning enforcement action.”
Four other neighbors spoke in opposition to the plan, saying it would have a negative impact on the area. John Meuser of Patchen Mews condominium on New Haven Avenue said he was concerned about an increase in traffic saying, “It's very difficult coming out of Patchen Mews.”
The board held open the public hearing until its July 3 meeting to give itself time to review the packets of information presented by both sides of the issue.