Greenwich Homeowners in Conservation Zones
|
|
|
RETURN DATE: FEBRUARY 25, 2003
CONCERNED
HOMEOWNERS OF
:
SUPERIOR COURT GREENWICH,
REBECCA BALIKCI, JOSHUA
: BRAIN, JOHN
BRISSON, PATRICIA CAPP,
: STEVE, CAPP,
SARA CONLEY, TOM
: CONLEY, ROBERT
G. DONNALLEY, JR.,
: CHRISTINE
LARSON EDWARDS, KAREN
:
JUDICIAL DISTRICT OF FEENEY, JO
HANNAFIN, LAURIE
:
STAMFORD/NORWALK JOSEPHS, PETER
LAURIDSEN,
:
AT STAMFORD PRISCILLA
LAURIDSEN, BARBARA
: MCKELVEY,
THOMAS MCKELVEY,
: MARGARET MIAO,
JOSE PEDREIRA,
: RITCH
ASSOCIATES, LLC, GEORGE
: SCHIMENTI,
ALAN SMALL, ANDREW
: SMITH, FLORA
SUTER, GEORGE SUTER,
: AND PEG
TISCHLER
:
Plaintiffs
:
: V.
:
: GREENWICH
PLANNING AND
: ZONING
COMMISSION
:
Defendant
:
JANUARY 29, 2003 APPEAL
UNDER SECTION 8-8 OF CONNECTICUT GENERAL STATUTES
AND DECLARATORY JUDGMENT ACTION COUNT ONE
1.
The Concerned
Homeowners of Greenwich, a Connecticut non-stock corporation whose members consist of
adversely affected homeowners, and whose trade name certificate is on file at the
Greenwich Town Hall, has an address at 15 East Putnam Avenue, #250, Greenwich, Connecticut
06830.
2.
Plaintiff,
Rebecca Balikci, owns 18 Carissa Lane, Greenwich, Connecticut, which property is located
in the RAC-2 zone.
3.
Plaintiffs,
Joshua Brain and Laurie Josephs, own 615 Round Hill Road, Greenwich, Connecticut, which
property is located in the RA-4 zone.
4.
Plaintiffs, John
Brisson and Jo Hannafin, own 8 Carissa Lane, Greenwich, Connecticut, which property is
located in the RAC-2 zone.
5.
Plaintiffs,
Patricia and Steve Capp, own 30 Orchard Hill Lane, Greenwich, Connecticut, which property
is located in the RA-2 zone.
6.
Plaintiffs, Sara
and Tom Conley, own 59 Husted Lane, Greenwich, Connecticut, which property is located in
the RA-2 zone.
7.
Plaintiff,
Robert G. Donnalley, Jr., owns 17 Intervale Place, Greenwich, Connecticut, which property
is located in the RA-2 zone.
8.
Plaintiff, Christine Larson Edwards, owns 111 Bible Street,
Greenwich, Connecticut, which property is located in the RA-1 zone.
9.
Plaintiff, Karen
Feeney, owns 50 Rockmere Avenue, Greenwich, Connecticut, which property is located in the
R-7 zone.
10.
Plaintiff, Peter
Lauridsen, owns 44 Mimosa Drive, Cos Cob, Connecticut, which property is located in the
RA-1 zone.
11.
Plaintiff,
Priscilla Lauridsen, owns 32 Barton Lane, Cos Cob, Connecticut, which property is located
in the RA-2 zone.
12.
Plaintiffs,
Barbara and Thomas McKelvey, own 146 Old Stone Bridge Road, Cos Cob, Connecticut, which
property is located in the RAC-2 zone.
13.
Plaintiff,
Margaret Miao, owns 23 Rock Ridge Avenue, Greenwich, Connecticut, which property is
located in RA-2 zone.
14.
Plaintiff, Jose
Pedreira, owns 14 Stallion Trail, Greenwich, Connecticut, which property is located in
RA-C2 zone.
15.
Plaintiff, Ritch
Associates, LLC, owns 70 Ritch Avenue, Greenwich, Connecticut, which property is located
in the R-6 zone.
16.
Plaintiff,
George Schinmenti, owns 72 Buckfield Lane, Greenwich, Connecticut, which property is
located in RA-4 zone.
17.
Plaintiff, Alan
Small, owns 86 Buckfield Lane, Greenwich, Connecticut,
which property is located in the RA-4 zone.
18.
Plaintiff,
Andrew Smith, owns 29 Barton Lane, Cos Cob, Connecticut, which property is located in RA-2
zone.
19.
Plaintiffs,
Flora and George Suter, own 71 Old Orchard Road, Riverside, Connecticut, which property is
located in the R-12 zone.
20.
Plaintiff, Peg
Tischler, owns 1057 King Street, Greenwich, Connecticut, which property is located in the
RA-1 zone.
21.
The defendant,
Greenwich Planning and Zoning Commission (the "Commission"), is the town agency
empowered to establish and change zoning regulations and districts pursuant to Conn. Gen.
Stat. § 8-1, et seq., and the Zoning
Regulations of the Town of Greenwich (the "Zoning Regulations").
22.
The Plaintiffs,
except for the Concerned Homeowners of Greenwich, are statutorily and classically
aggrieved by the actions of the Commission complained of, in accordance with Conn. Gen.
Stat. § 8-8, in that they are the owners of property in the town of Greenwich (the
"Town") and they are directly and adversely affected by the amendments to the
Zoning Regulations that are the subject of this appeal.
23.
The Concerned
Homeowners of Greenwich consists of members, e.g. all the plaintiffs herein and other
affected landowners, who will be adversely affected by the implementation of amended
regulations and who will suffer loss of property values thus making it classically
aggrieved.
24.
At public
hearings on May 7, 2002, November 19, 2002 and December 10, 2002, the Commission
considered certain amendments changing the floor area ratio ("FAR") for seven
residential zones set forth in the Town Building Zoning Regulations (the
"Amendments").
25.
The Commission
adopted the Amendments on January 7, 2003.
26.
Legal notice of
the Commission's adoption of the Amendments was published in the Greenwich Time
on January 15, 2003.
27.
The Amendments
make the following changes to the Zoning Regulations:
(effective date January 14, 2003) (words in
bold to be added, parentheses to be deleted)
1.
Amend. Sec.
6-205(a), Schedule of Required Open Spaces and Limiting Heights and Bulk of Buildings for
Residential Zones for Single Family Uses as follows: RA-4 Zone: .0625 Floor
Area Ratio/.05 for special exception and special permit uses See Note 7 for other uses (no
limit) RA-2 Zone: .09 Floor Area
Ratio/.075 for special exception and special permit uses See Note 7 for other uses (no
limit) RA-1 Zone: .135 Floor Area
Ratio (.15) RA-20 Zone: .225 Floor Area
Ratio (.25) RA-12 Zone: .315 Floor Area
Ratio (.35) RA-7 Zone: .36 Floor Area
Ratio (.40) RA-6 Zone: .55 Floor
Area Ratio (.60)
2.
Amend. Sec. 6-29. Floor
Area Ratio And Height Requirements: The maximum
floor area ratio and front, rear and side yard setbacks for lots in a Conservation Zone
shall be the same as those of the existing underlying zone in accord with Section 6-205(a)
(i.e. RAC-4 = underlying RA-4 zone FAR). For detached housing in the RA-C4 and RA-C2 zones only,
a 25% increase in FAR is permitted above the maximum FAR for the conservation zone lots in
the underlying existing zones. For detached
housing in the RA-C1 and R-C20, R-C12, and R-C7 zones only, a 15% increase in the FAR for
the Conservation Zone lots is permitted above the maximum FAR for the underlying existing
zones. These percentage increases result in
the following Floor Area Ratios:
28.
The Amendments,
when read together with Section 6-5(22) of the Zoning Regulations which defines Gross
Floor Area, are vague, unclear, and do not contain ascertainable standards, leaving the
Commission with an unlawful amount of discretion in their interpretation.
29.
The actual
result of the Amendments, and apparent underlying intent, is to prevent construction of
housing and to discourage the development of certain sizes of residential structures, in
zones where the plaintiffs' properties are located. The
Commission did not receive any evidence showing, or consider in any way, that the
Amendments would meet the stated objectives. In
fact, evidence was presented to show how the Amendments could not address their stated
purposes.
30.
The Commission's
adoption of the Amendments was illegal, unconstitutional, arbitrary and unreasonable, and
in violation of § 8-1 et seq. of the Connecticut General Statutes in that: a)
The Amendments
unlawfully limit floor areas in certain residential zones, when such an absolute
prohibition is not rationally related to the protection of the community's public health,
safety, and general welfare, and is beyond the Commission's defined powers under Conn.
Gen. Stat. § 8-2; b)
The Amendments
improperly empower the Commission to decide how to determine computation of FAR without
adequate standards and violate the uniformity standards of Conn. Gen. Stat. §8-2; c)
The Amendments were
not based on any meaningful analysis of the extent of non-conformity that will be created
by the Amendments. The Amendments are
identical to previous FAR regulations that were stricken by the Superior Court in April
2002 due to a defect in the process of their enactment.
However, on April 30, 2002, the Commission enacted certain amendments to its
Building Zoning Regulations to provide more detailed definitions of, and a more inclusive
methodology for measuring, “basements” and “attics” for purposes of
the FAR set forth in the Amendments. The
methodology used previously for defining and measuring basements and attics for purposes
of FAR had been much less inclusive. Despite
the logic that the combination of the Amendments and the more inclusive definitions and
methodology for measuring basements and attics for FAR purposes would dictate less
restrictive FAR ratios, the Commission nevertheless enacted the very same FAR regulations
as had existed prior to 2002. d)
The Amendments are in
violation of the Equal Protection clauses of the Constitution of the State of Connecticut
and the United States of America in that the Commission acknowledged in the Record that
they treated conservation zone and non-conforming lots in a discriminatory manner. The Amendments as proposed sought to reduce the
discriminatory impact, but only partially. However,
the Commission refused to enact this portion of the Amendments, leaving the full
discriminatory effect intact. e)
The Commission denied
two Petitions to Intervene, filed by Plaintiffs Alan Small and Peter Lauridsen under
C.G.S. §22a-19, without articulating the standard upon which its action must be based. f)
The Commission based
its decision on information contained in the Assessor’s office regarding existing
structures, and specifically “finished” basements and attics of existing
structures. This information was shown to be
inexact, if not anecdotal, and it was conceded that the Assessor’s office had never
been updated its records to account for the more precise definitions and more inclusive
methodology enacted in 2002 for measuring basements and attics for purposes of FAR. Thus, the Commission has no idea of the degree of
non-conformity that the Amendments will create, although it must be conceded that it will
be greater by virtue of the new definitions and methodology for measuring basements and
attics for FAR purposes than had previously been the case with the less inclusive
methodology and former definitions. g)
The Amendments are
unreasonable, arbitrary, and void for vagueness, in violation of the Fifth and Fourteenth
Amendments to the United States Constitution and Article First, Section 8 of the
Connecticut Constitution. h)
The Amendments did not
comply with the requirements of the Town of Greenwich Building Zoning Regulations, and, in
particular, was violative of Section 6-22 thereof, because they were submitted by the
Zoning Department “staff,” which is not permitted to submit such a petition. i)
The specific ratios
set forth in the Amendments were never shown to relate to the specific goals stated for
the Amendments. Indeed, despite being asked
by Plaintiffs to explain how the specific ratios were selected, and in fact extending the
public hearing to December 10, 2002 so that this explanation could be provided by its
staff, the Commission refused to make this information public or to require that staff do
so, and closed the hearing without ever providing this information. j)
The Commission
improperly considered evidence outside the record and unavailable to the public in making
its decision. k)
The Commission
prejudged its decision, and refused to consider the input of this citizens at the public hearings. l)
The public hearing was
not fairly conducted in that, among other things, the Commission received
“coaching” off the record on how to ignore public comment and how to react to
information from specific opponents of the Amendments, including the Plaintiffs herein. m)
The evidence in the
record, including but not limited to reliance upon admittedly erroneous data in
determining the extent of the nonconformities to be created by the Amendments, is
insufficient to support passage of the Amendments. n)
The imposition of
these Amendments without a factual basis is unduly confiscatory. o)
The Amendments impact
certain zones, in particular Conservation zones, disproportionately and non-uniformly, in
a manner contrary to Conn. Gen. Stat § 8-2, without any showing of a rational basis or need for
the disparate treatment. p)
Upon information and
belief, the specific FAR, which were identical to those enacted in 1998, have never been
calculated according to established planning methodologies; nor have the methodologies
used been put into the Record so as to justify their selection. q)
The Amendments, when
applied with the April 30, 2002 Attics and Basement revisions, referenced above, are
unconstitutional, especially as regards to the 2 Acre and 4 Acre zones, which had never
been subject to FAR regulations. Upon
information and belief, the Commission made no effort to determine the degree of
non-conformity that will be created by application of the Amendments and 2002 Attics and
Basements revisions. Further, these
regulations violate the fundamental uniformity requirement of zoning regulations, as they
seek to exempt existing attics but apply in full to new construction. COUNT TWO
1-30.
The Plaintiffs
repeat and reallege paragraphs 1 through 20 inclusive of Count One as if fully set forth
herein.
31.
There is no enabling legislation in Chapter 124 of the
Connecticut General Statutes allowing the Commission to limit the floor area without a
rationale based upon public health, safety or general welfare.
32.
It is impossible
for the Commission to properly administer the standards listed in the Amendments to
Section 6-205, since there are insufficient standards set forth in the Zoning Regulations
to guide an applicant on how to properly calculate what is included or excluded in the
floor area ratio. Thus, Section 6-205 is
fundamentally unfair, unduly vague, unenforceable and unconstitutional in violation of
Article First, Section 8 of the Connecticut Constitution.
33.
Section 6-205 of
the Building Zoning Regulations violates the uniformity requirements of Conn. Gen. Stat.
Section 8-2 since there are no standards in its Regulations by which the Commission may
judge how the various floor area ratios further the public health, safety or welfare of
Greenwich.
34.
The Plaintiffs
all own or have members who own existing residential structures on their property and some
wish to expand, alter or sell these properties.
35.
Because of the
vagueness of the Regulations, Plaintiffs have suffered or will suffer loss of property
values and will be unable to submit applications for previously intended work to change,
alter, demolish or construct improvements on their various properties now or in the
future.
36.
There are
actual, bona fide and substantial questions and issues in dispute and uncertainty of legal
relations regarding the validity of Section 6-205, as amended, of the Greenwich Building
Zoning Regulations.
WHEREFORE, the plaintiffs pray that the court: AS TO COUNT ONE: 1. Sustain their appeal. 2. Reverse the decision and hold that the action of the
Greenwich Planning and Zoning Commission is void and of no effect. 3. Reverse the decision of Greenwich Planning and Zoning
Commission and direct that it rescind its amendments to Section 6-205 of its Building
Zoning Regulations. 4. Grant such other relief as in law or equity may apply. 5. Grant equitable relief in the form of a restraining
order as allowed under C.G.S. § 8(g) against enforcement of these regulations, pending a
full trial of the merits of this appeal, so as to preserve the status quoante. AS TO COUNT TWO: 1. Declare the amendments to Section 6-205 fundamentally
unfair and unduly vague and unconstitutional both facially and as applied. 2. Reverse the decision of the Greenwich Planning and
Zoning Commission and direct it rescind its amendments to Section 6-205 of the Building
Zoning Regulations. 3. Grant such other relief as in law or equity may apply. 4. Grant equitable relief in the form of a restraining
order as allowed under C.G.S. § 8(g) against enforcement of these regulations, pending a
full trial of the merits of this appeal, so as to preserve the status quoante.
Dated at Stamford, Connecticut, this 29th day of January, 2003. PLAINTIFFS CONCERNED HOMEOWNERS OF GREENWICH, ET AL.
By:____________________________ Edward V. O’Hanlan Robinson & Cole LLP Financial Centre 695 East Main Street Stamford, CT 06904-2305 Tel. No. (203) 462-7500 Fax No. (203) 462-7599 Juris No.: 101121
Please enter the appearance
of Robinson & Cole LLP for
the Plaintiffs ________________________________ Robinson & Cole LLP Financial Centre 695 East Main Street Stamford, CT 06904-2305 Tel. No. (203) 462-7500 Fax No. (203) 462-7599 Juris No. 101121 |