Sally Saldamarco v. New Haven Board of Zoning Appeals et al. (2010)

MEMORANDUM OF DECISION

The plaintiff Sally Saldamarco is the owner of property known as 1555-1557 State Street, New Haven, Connecticut, and she has filed this appeal from the action of the defendant New Haven Board of Zoning Appeals in granting the application of defendant Leeway, Inc. for use variances.   The plaintiff claims she is aggrieved by the decision because she owns property within 100 feet of the property owned by the defendant Leeway, Inc., and also because of the classical aggrievement because of the impact that the use variance will have on her property.

The plaintiff claims the approval of the use variances to permit ten residential dwelling units in a Heavy Industrial zone, and to allow five parking spaces where ten are required was illegal, arbitrary and in abuse of the discretion by the defendant Board.   She also contends no legal hardship was demonstrated, and the variances were inconsistent with the comprehension plan of the city, and it expanded a nonconforming use of the property as well as lack of compliance with Section 63(c)2 of the New Haven Zoning Regulations.

This court finds the plaintiff is aggrieved by the decision of the defendant Board pursuant to Connecticut General Statutes § 8-8(a)1 because she owns property within 100 feet of the property located at 34 Weldon Street owned by defendant Leeway which is the subject of this appeal.

The record in this matter shows the defendant Leeway, Inc. purchased property known as 34 Weldon Street, New Haven, Connecticut on June 11, 2007.   The property is located in the Heavy Industrial zoning district and it is approximately 100 x 140 feet, and has a square foot area of 14,249 square feet.   The property has a two-story structure which contains two townhouse-style dwelling units, which abuts property at 40 Albert Street where defendant Leeway operates a skilled nursing facility.   The health care services are provided to HIV/AIDS patients including low income patients in the New Haven area.

In June 2008 Leeway appealed to the Board for the use variances to allow a 530 square foot addition to the structure which would facilitate eight additional housing units.   Leeway also sought to reduce the ten required parking spaces to five spaces.   The purpose of the change was to provide ten affordable support housing for persons with HIV/AIDS as they transition back into the community.

The property is located in an industrial zone, but it has never been used for industrial purposes.   It abuts property owned by Leeway which is also residential in nature and used as a convalescent home.   The small size of the subject property as to width and depth make it unsuitable for modern industrial uses.   The variances sought were recommended by the New Haven Plan Department because the area was one of broad mixed use and the residential use proposed would be compatible with the character of the surrounding neighborhood.

The record in this matter shows a denial of these variances would be contrary to the Comprehensive Plan and goals of New Haven, but also it would create a hardship to impose the general characteristics of a heavy industrial zone on this property which is not suitable for industrial uses.   For a variance to be granted under Connecticut General Statutes § 8-6(a)(3) two conditions must be fulfilled (1) the variance must be shown, not to offset substantially the comprehensive zoning plan, and (2) adherence to the strict letter of the zoning ordinance must be shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan.  Smith v. Board of Appeals, 174 Conn. 323.

The Board in this matter found the subject property was ill suited for industrial purposes, and the granting of the variances would have no impact on the area due to the unique circumstances.   The Board also found the granting of the variances would not substantially affect the comprehensive zoning plan and it would enhance the essential character of the surrounding area in line with the goals of New Haven in the development of government assisted housing for disabled residents.   The record does show that this site makes a logical space for the Leeway organization to provide supportive housing for the needs of the community.

The plaintiff contends the defendant Leeway failed to demonstrate a legal hardship to justify the approval of the requested variances, and the property should continue as a two-family dwelling in the Heavy Industrial Zone. Plaintiff argues that Leeway is motivated by financial reasons.   It is also claimed by the plaintiff that the defendants have failed to demonstrate compliance with the standards for the issuance of use variances under the New Haven zoning regulations pursuant to Connecticut General Statutes § 63(c)(2).   Finally the plaintiff claims the proposed use is inconsistent with the comprehensive plans found in the zoning regulations.

Variances under Section 41 of the New Haven Ordinance are permitted under Section 63(c)(1) “[w]here there is difficulty or unreasonable hardship in the way of carrying out the strict letter of the zoning ordinance ․ if such variance will be in harmony with the general purpose and intent of the ordinance and if the public health, safety and general welfare will be served and substantial justice done.”   This court finds the Board's decision meets the statutory test for granting variances.   The Board expressly relied on and agreed with the recommendations of the City Plan Department to permit supportive housing to HIV/AIDS patients on the subject property.

The purpose of zoning is to serve the interests of the community as a whole and one of those interests is to provide adequate housing, Malafronte v. Planning and Zoning Board, 155 Conn. 205, 212, 230 A.2nd 606 (1967).   The Board in granting the application did not violate its own regulations.   The Board's action in granting the variances was legal and appropriate.

For the foregoing reasons the plaintiff's appeal is dismissed, and the use and parking variances granted are found to be proper.

Howard F. Zoarski

Judge Trial Referee

Zoarski, Howard F., J.T.R.