Zoning Board of Appeals

CITY OF NORWICH ZONING BOARD OF APPEALS March 12, 2013 Meeting Minutes The regular meeting of the City of Norwich Zoning Board of Appeals was called to order at 7:05 p.m. Roll call was taken and it was determined that a quorum was present. PRESENT: Marc Benjamin, Chairman Dorothy Travers Paul Kramarewicz Henry Olender Joe East – Alternate Peter Cuprak - Alternate Raymond Dussault-Alternate ABSENT: Joseph Jacaruso, Co-Chairman ALSO PRESENT: Tianne Phoenix Curtis, Zoning Enforcement Officer Linda Lee Smith, Recording Secretary Attorney Michael Zizka, Counsel E. COMMUNICATIONS: None F. ACCEPTANCE OF MINUTES Upon motion by Raymond Dussault, second by Henry Olender it was voted unanimously to APPROVE the minutes with correction as stated for the February 12, 2013 regular meeting. G. OLD BUSINESS: None H. NEW BUSINESS: 1. A#13-01 – Application of St. Vincent de Paul Place for property located at Clairmont Ave a.k.a. Map 102/Block 5/Lot 74. In accordance with Sec.19.1.2 Appeal of decision of ZEO. Seated were Marc Benjamin, Dorothy Travers, Henry Olender, Paul Kramarewicz & Ray Dussault Attorney Michael Zizka of Murtha Cullina represented the City. Attorney Smith of Robinson & Cole (a.k.a. “applicant”) represented St. Vincent DePaul’s Place & St. Joseph’s. Revised May 20, 2013 1 Atty. Smith submitted abutter’s notices (Exhibit J) & presentation (Exhibit K) and read the original letter dated January 29, 2013 from Atty. Bates documented the original appeal. The applicant argued the Ms. Curtis’s Notice of Violations dated January 14 & 15, 2013 & Supplemental Notice of Violations dated February 6, 2013 were invalid for reasons stated in Atty. Bates letter as well as tab 3 of the presentation. Jillian Corbin, Executive Director of St. Vincent De Paul Place distributed her resume (Exhibit L) & gave a brief history of the soup kitchen including the CCP’s denial of the Special Permit application at the December 18, 2012 meeting. Ms. Corbin stated the ZEO’s notice of expiration of the temporary permit had caused stress and upset to the patrons who were distraught the closing would leave them with no food, shelter or amenities. The potential for a forced closure didn’t allow them to apply for funding for code improvements including an elevator; however they received notice on March 11th from the Office of State Building Inspector, permitting a two month extension for accessibility. Atty. Smith stated the defective notices should be overturned by the ZBA for the aforementioned reasons. The Board had no questions of the applicant at the time. Chair Marc Benjamin asked if there was anyone wishing to speak specifically to the appeal. Brian Kobylarz of 16 Hobart Ave spoke in opposition of the appeal & submitted his communication (Exhibit M), an outline of the Soup Kitchen’s inconsistencies & activity from June 2012 to date. Atty. Zizka, ZEO counsel, presented their position. While he concurred the initial notices of violation contained a typographical error, (reference to Sec.8.1.2 rather than Sec 8.2.1), the notices would not have come as a surprise as Mr. Kobylarz had earlier indicated. Zoning permit Z#12-160 expressly stated the permit was temporary & valid only for a 6 month temporary use. Atty. Zizka disagreed with the applicant’s position the Supplemental Notice of Violations was inaccurate. Sec.8.3.1 states “no buildings or uses are permitted in the multifamily district except in accordance with the following”; under which special permitted uses also fall. Atty. Zizka stated that, as the applicant was denied the special permit per Sec.8.3.2, their operation must be permitted as of right under Sec.8.3.1. As the ZEO’s notice states noncompliance of Sec.8.3.1, the notice is in fact accurate. The applicant has neither special permit nor permit as of right to operate at the location; therefore, the notice of violation under Sec.3.1.1 was also correct in the notice. Atty. Zizka stated Ms. Curtis is prepared to submit a letter disregarding the January notice; however the supplemental notice of February 6, 2013 is correct and Ms. Curtis will not rescind. Revised May 20, 2013 2 Atty. Smith argued Ms. Curtis had the ability to disregard the provision of regulations requiring a special permit under the Religious Land Use and Institutionalized Persons Act (RLUIPA). Atty. Zizka responded that the ZEO does not have the legal ability to disregard regulatory requirements under RLUIPA; although consideration of RLUIPA could be taken by the board, as it was by the CCP. Marc Benjamin asked if there was any merit to Atty. Smith’s claim the ZEO’s notice could lead to fines and or potential jail time. Atty. Zizka replied there have been criminal violations with penalties applied by the State’s Attorney’s office; and civil violations pursued through a court of law. Atty. Zizka noted consideration is given to the alleged violator’s knowledge of the violation. The ZEO’s issuance of a notice of violation ensured proper notification and allowed the property owner to be charged with a knowing violation. Joe East asked the applicant if the ZEO’s February 6, 2013 notice was also being appealed; as this notice was not included in the application filed. Atty. Smith responded that Atty. Bates had submitted the application on January 29, 2013, prior to the issuance or receipt of the supplement. The applicant intended to address the matter at this meeting. Atty. Zizka questioned why the applicant had not filed a supplemental appeal. Atty. Smith did not feel this was necessary as this notice claimed to clarify. Paul Kramarewicz asked Atty. Smith if a special permit was required to operate. Atty. Smith replied a use variance would permit it in the absence of the special permit. Atty. Smith intended to present all arguments at the use variance hearing. Raymond Dussault asked the applicant if any alternative locations were sought; Atty. Smith stated they are looking. Joe East asked the applicant to explain how, given the information in all notices, they weren’t aware of the violation. Atty. Smith replied they were not in violation of the cited regulations & therefore the notices were invalid. Ray Dussault asked for an explanation as to how RLUIPA is applied to the conversion of a school to a place of worship. Atty. Smith said the mission to feed the poor is a part of their religious beliefs and therefore the use is a part of the religion itself. Marc Benjamin asked that, if the ZBA were to overturn the ZEO’s decision, would the use variance still be necessary. Atty. Smith stated the applicant would continue to pursue the variance. There was discussion relative to the applicable sections and consideration of RLUIPA. Revised May 20, 2013 3 There being no other speakers, the public hearing was closed. For the record the four regular members and Ray Dussault would be voting. Motion was made by Marc Benjamin and second by Dorothy Travers to move on Appeal A#13-01. Motion carried unanimously. Voting were Marc Benjamin, Dorothy Travers, Henry Olender, Paul Kramarewicz, and Ray Dussault. Motion was made by Dorothy Travers and second by Henry Olender to table the decision and continue A#13-01 at the next meeting scheduled April 9, 2013. All were in favor to table decision until next month. There being no other speakers, the public hearing was closed. The ZBA will not be allowed to take any additional testimony. The ZBA only can review and vote on it. V#13-03 – Application of St. Vincent de Paul Place for property located at Clairmont Ave a.k.a. Map 102/Block 5/Lot 74 in a Multifamily (MF) zoning district. In accordance with Sec.8.3 et seq. use variance to permit the operation of a food pantry and soup kitchen Attorney Brian Smith, Robinson & Cole represented St. Vincent de Paul Place & St. Joseph Polish Roman Catholic Congregation. He gave a brief presentation and submitted supportive information to all allow St. Vincent de Paul Place to obtain a Use Variance to allow them to operate the soup kitchen and food pantry. Exhibit AA – the Abutters’ Notice Certificates. Exhibit BB - St. Vincent De Paul Place Appeal for Use Variance Presentation from Attorney Smith. Attorney Smith informed the ZBA that they are looking at the entire campus of St. Joseph’s which consists of the St. Joseph’s Church, the rectory, and school. He read excerpts from his presentation to the ZBA entitled St. Vincent de Paul Place, Appeal for Use Variance Presentation submitted as Exhibit BB. The deeds were submitted as Exhibit #2. The Norwich CCP denied the Special Permit SP-12-03, submitted as Exhibit #3. Exhibit #4 was the ZEO’s two letters of notices of violations. Also included in Exhibit #4 was the CT General Statute 8- 6a which states if the board is presented with an appeal and variance the appeal needs to be heard before the variance. The ZBA has the power to award them the Use Variance at the school. A Use Variance is a tool for getting zoning approval. It’s St. Vincent’s mission to serve the poor. They are not only protected under RLUIPA but also under the U.S. Constitution. Exhibit 5 states they have a long history of conducting religious, cultural, educational, and social programs. Revised May 20, 2013 4 Jillian Corbin, Executive Director presented for St. Vincent’s De Paul Place and handed out Exhibit “CC” her resume. Ms. Corbin stated a list of other food pantries that supply food and meals to the needy are located in Tab 6 of Exhibit BB. St. Vincent’s De Paul Place is closed on Sundays; other religious and nonreligious places provide meals and/or food on Sunday as well as other dates and times. Linnea C. McCaffrey Land Use Analyst and certified planner from Robinson & Cole gave a brief presentation. She researched municipal records in the Planning Office where she could review the building and zoning files for the churches which had no change of use pertaining to zoning. Ms. McCaffrey’s findings were there were no soup kitchens in Norwich. No permits had been issued for a soup kitchen. The only permits found were a special permit #SP-05-02 and a Zoning permit #Z-05-54 were issued for the First Haitian Baptist church, 356 Central Ave. which was the former VFW to be established as a church, located in Tab 8 of Exhibit BB. She did not find any information on preparation of meals or food pantries or any change of use on the churches she researched. Marc Benjamin asked Ms. McCaffrey what her definition was of a soup kitchen? Ms. McCaffrey stated she wasn’t prepared to answer the question but she thought a church that offers meals to its parishioners is not a soup kitchen. If a church opens their doors to any denomination and because of their need she thought that would be a soup kitchen. Marc Benjamin asked Ms. McCaffrey if the other churches in the City are considered soup kitchens. Ms. McCaffrey didn’t want to respond and asked Ms. Corbin and the other churches to answer. Ray Dussault asked Ms. McCaffrey what she thought the function of a food pantry was and whether it is any different than an operation that feeds people on a daily basis vs. once a week. Ms. McCaffrey stated she wasn’t prepared to answer. Ms. McCaffrey thought the food pantry gave out food that is not prepared or eaten on the premises. Ray Dussault stated that the food pantry seems to be the primary function; he also stated there seems to be a difference between food preparation delivery vs. food pantry. Ms. McCaffrey stated both are what the variance is going for. Dorothy Travers asked a question about the accessibility elevator. If the basement and the first floor are only being used, why is the elevator going to the third floor. Ms. Corbin stated they would be using the basement and the 2 rooms on the first floor. Ms. Corbin stated it only makes sense to install the elevator to go to all the floors. Revised May 20, 2013 5 Mr. David Warfield employed by Central Baptist Church handed in Exhibit “DD”, a brief explanation that their church mission is to feed the hungry and thirsty. That’s why many churches have food pantries. They have been serving meals for more than 20 years. They work in collaboration with many churches and Human Services, and plenty of meals have been served over the years. A couple years ago they began a Hospitality Meals Program with Norwich Human Services whereas they served breakfast when St. Vincent’s is closed and also evening meal on Fridays. Other churches also serve meals. They had contacted Uncas Health District for a commercial kitchen, as well as the Building Dept. but they never spoke to zoning about hospitality meals. He doesn’t understand why they’re requesting Vincent De Paul Place to get permit when other churches haven’t. Attorney Zizka asked if they were serving meals from the church itself. Mr. Warfield stated it takes place in Bushnell Hall with a commercial kitchen and they feed up to 107 people. Mr. Zizka asked if they have any other services they provide in addition to the meals. Mr. Warfield stated they also provide clothing, and nutritional information. Marc Benjamin asked prior to Central Baptist church ever serving meals did they contact the appropriate offices for the needed permits? Mr. Warfield stated that they went to Uncas Health, the Fire Marshal, and Joe East for a building permit. At the beginning they were only helping/serving 8 people and over the years it’s grown to over 100. Joe East stated that Mr. Warfield from Central Baptist church had an existing kitchen and was making improvements to get the commercial license. Mr. Warfield stated they serve a Friday evening dinner and a Sunday morning breakfast. Letter from the Diocese Bishop Michael Cote dated March 12, 2013 Exhibit “EE” was read in support. Marc Benjamin asked Atty. Smith what’s the primary use of a soup kitchen vs. food pantry and what’s the difference with the churches that were listed that serve meals, and are they considered soup kitchens or pantries or both? Jillian Corbin stated her affidavit states that information whereas Central Baptist Church has both. She stated some have community meals prepared vs. pantry is once a week or once a month and they can prepare them at home. Marc Benjamin asked if the food pantry operates within church; and if the food pantry would be considered an accessory use because they donate food. Attorney Smith stated it’s a religious and eleemosynary use it and it doesn’t make any difference because its part of their core catholic mission. They want to be able to use it for both the soup kitchen and pantry and there are others in the city that do the same. Revised May 20, 2013 6 Atty. Zizka stated the original CCP application stated a variety of uses including laundry services, public showers, counseling services etc. Atty. Zizka asked whether their application was for everything or just for the food pantry and soup kitchen. Attorney Smith had stated it was for the food pantry and soup kitchen. Atty. Zizka wanted it explained to the ZBA. Atty. Smith stated as long as clients were coming to the soup kitchen for meals they could also get a variety of other services. Attorney Zizka stated in the court document it also states counseling services. Ms. Corbin stated they have a part time case worker. They generally ask for help with lodging, showers and make referrals to other agencies. Attorney Zizka asked if that’s all they’re requesting. Ms. Corbin stated it’s all listed in her affidavit. They have a postal mail service also. Attorney Zizka asked is it your position that would entitle them to do any other kind of services? Attorney Smith stated that they would only be allowed to do what would be approved and if they wanted to do other services they would need to come back to the board for additional approval. Attorney Zizka asked Atty. Smith what board they’d come back to either the ZBA or to CCP for a Special Permit. Attorney Smith was not sure because they haven’t been approved for anything yet. Marc Benjamin stated his concern was if St. Vincent’s De Paul’s Place were approved for the soup kitchen and pantry he didn’t want it to develop into a homeless shelter. Attorney Smith said it wouldn’t be included but he didn’t know where he would go to get the permit. He didn’t know if it was permitted in MF zone by Special Permit or if it would be permitted by a right but he would need to do additional research but it’s not what they’re asking for tonight. Marc Benjamin stated Ms. Corbin had previously gone over the appeal very quickly and they want to consider RLUIPA for this variance and how St. Vincent’s could be considered by the church as opposed to a separate entity. Jillian Corbin stated it’s listed in Section 6 of their presentation Exhibit “BB” The services and programs offered by St. Vincent’s is a form of religious exercise which is central to the faith of the Diocese, the Church, and St. Vincent’s. It was founded to meet the basic needs of the homeless and immediate needs of the poor. They strive to help people meet self-sufficiency and have a better life. Their people consist of all ages, the working poor, the homeless, under employed, senior citizens, veterans and people from recovery houses. They serve anyone. They have tax exempt status. Dorothy Travers questioned Ms. Corbin for clarification #12 in the presentation. Ms. Corbin clarified that when the City’s No Freeze Shelter operates in the winter they have evening hours but close at 7:00 a.m. and St. Vincent’s would be open for homeless to come in from the inclement weather. Revised May 20, 2013 7 Attorney Smith stated this isn’t the first time serving meals at this location. Reverend Tadeusz Zadorozny submitted Exhibit “FF” with the history of St. Joseph’s and it’s not the first time they’ve served meals. They’ve been supplying food, clothes and meals for many years. Marc Benjamin asked for a recess. Upon motion by Ray Dussault and second by Henry Olender it was voted unanimously to recess at 9:15 p.m. Marc Benjamin reconvened at 9:28 p.m. He informed everyone they had to be out of City Hall by 10:30 p.m. The meeting has to be continued to next month. The use variance has to be forwarded to CCP to give their recommendation to the ZBA. The ZBA will not be able get all the testimony on record; it will be continued until next month. Upon motion by Raymond Dussault second by Marc Benjamin to request the CCP & ZBA applications including special permits with all the CCP minutes with their recommendations to the members. Motion carried unanimously. Raymond Dussault explained that charity work is very necessary and they do a tremendous job in the city but charity isn’t the issue. He wanted to make sure everyone understands it’s about the site facility and use and everyone needs to stay focused on the issues. Sister Lazarus, read Sister Mary Mark’s, former principal of St. Joseph’s School submitted Exhibit “GG” information. The people from the Norwich Area Clergy Association would not be able to appear next month so they were speaking this evening. Ms. Joan Breckenridge and others read Exhibit “HH” their mission to serve God. Father Ray Introvigne, co-director of spiritual and renewal services for the Diocese said that neighbors should be ashamed to oppose the facility. He said anyone could fall into poverty at any time. Attorney Smith stated that St. Joseph’s has had an educational use for many years and they are not planning on giving it up. He will call upon Ms. Corbin to explain what St. Vincent’s has to offer as a soup kitchen/food pantry. Ms. Corbin submitted Exhibit “II” the flyer of their church bulletin with a list of services they offer. St Joseph’s Parish Center burned and later the school basement was used to share many dinners, carnivals, celebrations, feed and cloth the poor. Revised May 20, 2013 8 Ms. Corbin submitted Exhibit “KK” showing the survey radius of their patrons that are within ½ mile. She stated of 166 patrons for breakfast, 130 walk 69% are within ½ mile making St. Vincent De Paul an excellent place within walking distance. Ms. Corbin submitted Exhibit “LL” letter of support from United Way from Virginia Mason. Ms. Corbin submitted Exhibit “MM” letter of support from Tom Reynolds, United Way. She said they have the largest members 7,000 meals a month, and 1,700 meals from their pantry from the Gemma Moran Food bank. Ms. Corbin submitted Exhibit “NN” map with a list of the Food pantries with within ½ mile radius. Ms. Corbin submitted Exhibit “OO” a letter of support from Jill Patten, St. Bernard’s School. Ms. Corbin submitted Exhibit “PP” information entitled Rx for Health- Homeless Outreach & Education. Ms. Corbin submitted Exhibit ”QQ” a copy of EASTCONN agreement with St. Vincent de Paul Place for their Youth Employment and Training Program. Ms. Corbin submitted Exhibit “RR” Easter Seals - Host Agency Agreement. Ms. Corbin submitted Exhibit “SS” information entitled Neighborhood/City Activities conducted by St. Vincent De Paul Place. Ms. Corbin stated they are sensitive to their neighbors and she asks if they see any inappropriate behavior happening to please bring it to her attention and they will address it with a solution. Marc Benjamin asked about the Medical Generation’s health van. Ms. Corbin stated it’s a medical health van that parks on Clairmont Avenue. The van comes every Mon 8-11 a.m. and it’s available to everyone. Typically it has limited services because it only has two patient rooms. It’s for limited issues such as medications, high blood pressure, and diabetes. If they need follow-up services they would have to go to Generations at Backus Hospital or to their primary doctor. Henry Olender questioned Ms. Corbin about the services they supplied at their previous location on Railroad Avenue. Ms. Corbin stated they are doing all the same services as they were doing at Railroad Avenue except they are not doing the Backus Hospital Rx Healthy cooking of foods. Revised May 20, 2013 9 Corrine Kelly, chairman of the Board St. Vincent’s De Paul Place submitted Exhibit “TT” 280 signed petitions from many residents in support of St. Vincent’s and Exhibit “UU” Corinne’s presentation. Bill Russell submitted Exhibit “VV” alternative sites dated 3/12/13. In 2009 they started looking for alternative sites with a large commercial kitchen, within walking distance, or near bus stops. Most of the sites had problems such as considerable construction, extensive renovation or significant environmental problems. All of the sites would require similar zoning requirements. They can’t go back to 10-12 Railroad Avenue because they’ve outgrown it and there are structural issues. The 120 Cliff Street is the most logical place to have it. Ray Dussault asked if he had documentation or a report with the various site information and location. Mr. Russell stated he had notes but would get the documentation to the board. Marc Benjamin asked how much larger is St. Joseph’s, St. Vincent De Paul Place than the former 10-12 Railroad Place location. Mr. Russell stated he didn’t know, but he stated he would get the numbers for the committee. Mr. Russell stated their use of the building is for the basement soup kitchen and pantry to first floor only. The first floor needs ADA handicap accessibility. Joe East previously had asked Attorney Smith and wanted to ask Mr. Russell if he was going to maintain and not abandon the educational use of the structure. Joe East wanted clarification as to if they were looking at mixed use of all three, assembly for the soup kitchen, and mercantile use for the pantry as well as educational on the third floor? Mr. Russell stated that they are only going to use the basement for the soup kitchen and the first floor for the food pantry. They don’t intend to use the third and fourth floors. Atty. Smith stated the soup kitchen will be located in the basement and the food pantry limited to the first floor. They also are not abandoning their educational use. Atty. Zizka stated one way to abandon the use is if you are converting two of the three floors to a different use. He hadn’t heard of partially converting or maintaining a building. Attorney Zizka asked Attorney Smith if they planned on abandoning the 3rd & 4th floors. Attorney Smith stated that in Simsbury there was commercial use case where someone took it to court relative to partially abandoning use. He will provide the board the notes when they’re done. Revised May 20, 2013 10 Attorney Zizka questioned Atty. Smith that he’s asking the board to give a variance without having made a traditional hardship, except for RLUIPA? Atty. Zizka also asked if you’re claiming a variance and have a hardship or a right under federal law with all the items you’re requesting, how could the board in the future ever deny anything else they would want to do? Attorney Smith stated he doesn't understand what the board’s decision is going to be. Atty. Smith stated they have a hardship. He also stated there are other organizations in the city doing the same services as what St. Vincent De Paul’s is applying for. Atty. Zizka asked Atty. Smith to name one other organization that is operating what St. Vincent De Paul’s are requesting? Atty. Smith said the Central Baptist church. Atty. Zizka questioned if it was for the exact same services that St. Vincent’s was requesting. Atty. Smith said Central Baptist church because they have a soup kitchen and food pantry. Attorney Zizka asked if they are the same exact uses including showers etc. You are asking for a basket of uses, asking this board to bless what the city, hasn’t done to any others. Attorney Smith stated St. Vincent’s is requesting all the services that were listed but they would be grateful if the board granted some of the uses they’ve requested. The hardship is they were evicted from 10-12 Railroad Avenue because it became unusable to them and they also can’t use the parochial school. Ray Dussault stated that it’s not being used as a parochial school but they change the use and also to retain the right to use it in the future. Attorney Smith said that he thought Attorney Zizka would agree with him that if you stop using the facility as long as you don’t intend to give it up you can go back and use it for the same use. Ray Dussault said that they want to maintain what they have and in the future could go back for the educational use. Ray Dussault and Atty. Zizka asked if there was a difference between elementary and adult education? Attorney Smith stated there is an educational use to preserve. Tianne Curtis stated it hypothetically comes down to educational use. If there is curriculum it would be considered a school; if guidance, counseling, and leadership it would be considered professional office or customer service. Question is it a school? Marc Benjamin asked for Attorney Smith to continue on hardship at the next meeting. Upon motion by Paul Kramarewicz second by Raymond Dussault it was voted to continue the hearing. Motion carried unanimously. Revised May 20, 2013 11 K. ADJOURNMENT On a motion by Paul Kramarewicz, second by Dorothy Travers it was unanimously voted to adjourn at 10:25 pm. Respectfully submitted, Linda Lee Smith Recording Secretary Revised May 20, 2013 12