New Haven Independent

The State Supreme Court overruled an appellate decision that blocked the city from creating a Planned Development District (PDD) in order to allow Anthony’s to expand its catering facility and its parking lot after tearing down a half-dozen nearby houses it purchased.

Anthony’s has been a point of contention for years in Morris Cove. The waterfront business attracts hundreds of visitors to events in the midst of a residential neighborhood. Neighbors were already mad about that. They got madder in 2001 when Anthony’s convinced the city to create the new PDD to allow the expansion. So they sued.

They convinced the Appellate Court that the city was making up a whole new zoning district just to please a single property owner, that the PDD rules were too vague, and that the city lacked the legal authority to create such districts. Created by city statute, PDDs are designed to allow the city to carry out major development projects by overruling zoning restrictions. That 2004 Appellate ruling shocked the city; it suddenly removed a key planning implement, the PDD, from the city’s development toolbox. City leaders feared the ruling would tie their hands in moving forward major development projects. Some local activists hailed the appellate ruling as a victory for citizens against an overreaching government that bends the rules to force through projects that harm the character of residential neighborhoods.

In the ruling released Tuesday, the State Supreme Court sided with the city’s argument that it indeed has the authority to create PDDs, and that this wasn’t a case of so-called “spot zoning,” in which a government helps a single property owner violate zoning rules by creating a new zone for an ostensibly broad public use. (In an unrelated case involving some of the same actors, a state judge ruled against the city’s plans to alter zoning in order to build the new Hooker School. The city is appealing that decision.)

“I’m a little crestfallen,” said John Gesmonde, lawyer for the neighbors who sued to stop Anthony’s from expanding. “This ruling is very unfortunate. It makes soup out of the differences between floating zones, illegal spot zoning and PDDs.” The Supreme Court compared PDDs to floating zones — in which a city can create allow a new use in an area where the underlying zoning rules already would have allowed it.

Gesmonde said the ruling will affect only Anthony’s, because of a new state law passed this session that limits the use of PDDs in cases just like this one and makes it harder for cities to allow businesses to expand in residential neighborhoods. Since the city approved the Anthony’s expansion long before the law passed, it would be allowed to proceed thanks to this week’s Supreme Court decision. Two New Haven state legislators, State Sen. Martin Looney and State Rep. Robert Megna, modeled the state law’s language on the appellate ruling. Looney said the law definitely makes it harder for the city to create new districts. “We felt more due process was necessary to put more objective criteria” in the process, he said Tuesday night. Click here and here to read more about the new law — Section 2 of Public Act No. 06-128, dealing with “floating and overlay zones and flexible zoning districts” — that Looney and Megna succeeded in passing.

The city’s Tom Ude said he’s not so sure Gesmonde is right. He argued that the Supreme Court ruling gave local governments broad powers to create new zoning districts. He plans to examine the ruling in more detail in coming days to tease out that question.

Gesmonde said he plans to examine the new state law to see if there may be special circumstances that would cover the Anthony’s case despite its age. He also said he might file a motion for reconsideration based on the argument that “the legislature has spoken” about its intent to limit PDDs with its new law.

Meanwhile, City Plan Director Karyn Gilvarg said the new PDD allowing Anthony’s expand will take effect. The city needs to revisit the details of the expansion, though, she said.