DocketNumber: No. 28 58 07
Citation Numbers: 1990 Conn. Super. Ct. 679
Judges: LEAVITT, JUDGE.
Filed Date: 7/12/1990
Status: Non-Precedential
Modified Date: 4/17/2021
After a hearing, the court finds the plaintiff Elsie Sackett an aggrieved party in that she owns the subject property known as 24 Parker Avenue. The building lot is part of a 1924 subdivision known as "Fair Haven Heights." The subdivision's lot and roads were plotted on a recorded map and sold. The section of the subdivision where the plaintiff's building lot is located has never been developed, including Parker Avenue, on which the building lot fronts. To date, the City of New Haven has not accepted Parker Avenue as a city street.
On or about May 16, 1989, the New Haven ZBA, pursuant to 63 E.2. of the Regulations, received a City Planning Department Advisory Report from its zoning director which recommended approval of the plaintiff's application without conditions based on the fact that the application met all the required criteria. (Return of CT Page 680 Record, Ex. G., Advisory Report).
On or about May 16, 1989, the ZBA denied the plaintiff's application.
Section 63.G. of the Zoning Ordinance of the City of New Haven ("Zoning Ordinance") provides that an application for waiver of the prohibition against building on an unaccepted street shall be determined by the Board as provided in Article VI of Chapter 27 of the Code of Ordinances of the City of New Haven ("General Ordinance"). Section
Section 63.D. of the Zoning Ordinance states that the Board may grant a special exception only where the proposed use is in accord with the public convenience and welfare after taking into account where appropriate:
a. the nature of the proposed site, including its size and shape and proposed site, shape and arrangement of structures;
b. the resulting traffic patterns and adequacy of proposed off-street parking and loading;
c. the nature of the surrounding area and the extent to which the proposed use or feature might impair its present and future development;
d. the proximity of dwellings, churches, schools, public buildings and other places of public gathering;
e. all standards contained in this ordinance; and
f. the comprehensive plan of the City of New Haven, and other expressions of the purpose and intent of the ordinance.
The enumerated criteria of Section
(1) The lot or lots involved were owned by the present owners prior to August 15, 1966;
(2) The proposed access: CT Page 681
(a) Is over an unaccepted street not more than two hundred fifty (250) feet in length, or
(b) Can only be gained by passing over a right-of-way which is not within the ownership or control of the applicant or the present owners;
(3) There are no practical alternatives available to the applicant and the present owners to enable them to meet the requirements of Section
27-76 ;(4) The denial of a waiver would effectively prohibit the use of the property for any purpose;
(5) There are adequate provisions for utilities, sewers and fire equipment access;
(6) The granting of such a waiver would not significantly affect public safety.
The evidence presented to the Board shows plaintiff met all of the standards and criteria required in order to enable the Board to grant the desired waiver.
As to the criteria of Section
Similarly, as to the standard of Section 63.D.3.b. of the Zoning Ordinance, the Board found the proposed use not to be in accordance with the public convenience and welfare in that the development of the site would lead to an increase in traffic hazard on Russell Street. That finding is not supported by any factual evidence in the record. Torsiello v. Zoning Board of Appeals,
As to the standard of Section 63.D.3.C. the Board found that CT Page 682 development of the site would, by virtue of the topography of the site, worsen the flowage of water into neighboring lots. While testimony on this point was given by a neighbor who claims an existing water problem, (Ex. K, p. 34), it is again speculation not supported by any factual evidence in the record.
When a zoning authority has stated reasons for its actions the reviewing court ought to examine assigned grounds to determine whether they are reasonably supported by the record and pertinent to the considerations the authority was required to apply pursuant to the zoning regulations. Havurah v. Zoning Board of Appeals Town of Norfolk,
The court finds that the ZBA's denial of the plaintiff's application is not supported by the record in that the findings of the Board are based on speculation and surmise of neighbors. There is no expert testimony supporting any of their contentions. The ZBA, therefore, acted illegally, arbitrarily, and in abuse of its discretion.
EDWARD J. LEAVITT, JUDGE.