nothin New Haven Independent | ZBA Rejects Controversial Shoreline Home

ZBA Rejects Controversial Shoreline Home

Diana Stricker Photo

Arsalan Altaf with photo of property

A Middletown man showed Branford’s Zoning Board of Appeals (ZBA) photos of the half-acre lot where he hoped to build a shoreline home, but the board denied his requests for variances, saying he knew when he bought the land last year it was not a buildable lot.

Diana Stricker Photo

The ZBA voted unanimously to deny the variances after a two-hour public hearing Tuesday night that attracted about 50 people. The previous owner‘s request for variances was denied in January 2015.

Arsalan Altaf, pictured above, bought the 239 Pawson Road site from Patricia Northrop in September 2015 for $35,000 through his Pawson Point LLC. The property is assessed at $49,000 and appraised at $71,100.

Altaf also has an alternate request pending before the Planning and Zoning (P&Z) Commission to construct an “affordable housing” project on the same lot, which would include two buildings and six apartments. The P&Z held a public hearing on that proposal last month.  State statute permits affordable housing applications to supersede zoning regulations unless it can be proven that there is “substantial public interests in health, safety or other matters.” The P&Z public hearing is scheduled to continue September 1.

Altaf is represented by attorney Kevin J. Curseaden of Carroll, Curseaden & Moore LLC of Milford. Curseaden also represents Charles Weber and Al Secondino in their plans to build six commercial businesses near what was a proposed Costco on a Planned Development District at Exit 56.

The property is adjacent to 20 acres of open space land owned by the State of Connecticut, and has a state easement running through it. The site is about 200 feet from the Branford River and has tidal wetlands on it.

Altaf told the ZBA that he believes the lot is obviously suitable for building.

“I did a lot of research on the property. When I bought it, I believed that I could build on it. I understand there’s a comment about not building, but that’s a layman’s comment,” Altaf said.

He said he met several times with the town’s Zoning Enforcement Officer Jennifer Acquino to discuss the property. Acquino’s research prior to the January 2015 ZBA hearing supported the board’s denial of the variances and the site’s non-building status.

Altaf, a manager of Sam’s Food Stores in Rocky Hill, told the ZBA he wants to build a 2,000 square-foot two-story home that would increase the town’s tax base. He said the board has the power to allow him to build a home on the site. “I hope you consider the power that you have,” he said.

Neighbor’s Attorney: No Hardship for Owner

Diana Stricker Photo

Attorney Joseph B. Schwartz (pictured), who represents neighbors Stephen and Patricia Small, said Altaf was seeking rather substantial variances.” Schwartz, an attorney with Murtha Cullina LLP of Hartford, said there is a two-part test for granting variances — - if the request conforms to the town’s Plan of Conservation and Development, and if the owner can prove a hardship. He said the owner’s request did not meet those standards.

The variances requested that the lot area be decreased from the required 15,000 square feet, to 7,374 square feet; that the required frontage be decreased from 90 feet to 30 feet; and that the square on lot be decreased from 100 feet to 62 feet.

Schwartz discussed the history of the site and the adjacent property, which had two separate owners at one time, and was later merged for ownership by the same person. In 1987, the lots were split and Patricia Northrop purchased the lot at 239 Pawson Road. In January 2015 Northrop requested a variance to make the property a buildable lot but it was denied.

Schwartz said the Small’s offered to purchase the property from Altaf in March 2016 for $48,000, but Altaf countered with $98,000 and negotiations stopped. Altaf had purchased the lot for $35,000 in 2015.

Schwartz said the Connecticut courts have a purchase with knowledge rule” which says a prospective owner must know the zoning regulations for the property and cannot claim a hardship if he voluntarily assumed otherwise. Schwartz sited court cases which uphold the rule.

Schwartz said Altaf’s hardship was self-created.”

Patricia Small, the neighbor who lives on the adjacent property, submitted a petition signed by neighbors in opposition to Altaf’s variance requests.

I do think that the coastline will be impacted by this,” Small said.

Environmental Impact

Local environmentalist Bill Horne presented the ZBA with numerous documents relating to concerns about the property. The information included: a fact sheet about tidal wetlands from the Department of Energy and Environmental Protection‘s Office of Long Island Sound Programs; the state’s Coastal Management Manual; a report about marshland from the U.S. Fish and Wildlife Service; documents from NOAA and the Union of Concerned Scientists regarding sea level rise and tidal flooding; a report from The Nature Conservancy about predicted marsh advancement along Branford Harbor and Indian Neck; and a map of estimated flooding in 2080 in the Indian Neck and Pawson Park areas.

Horne said the ZBA should take all these matters into consideration before allowing construction of a residential structure on a property with tidal wetlands that is prone to flooding.

One of the neighbors who spoke at the hearing was Eve Volk who lives on Pawson Road. She described how she often kayaks in the Branford River and that she is familiar with the marshlands. She said the marsh has expanded over the years.

The marsh is rising,” Volk said, adding that it’s not just during extreme storms, but during high tides. It’s when there’s a full moon. It’s normal now,” she said.

Curseaden Claims Lot is Buildable

Diana Stricker Photo

Curseaden (pictured) described the plans for the property and the rationale for approving the requests.

Curseaden said the project would not adversely impact coastal resources or the neighborhood.

He discussed the timeline of the zoning regulations and the history of the property. He said Aquino’s research in 2015 was an excellent job” but he disagreed with a technical issue with respect to the lot size. He said the lot is incorrectly termed undersized because Branford’s zoning regulations deduct tidal wetlands and certain rights-of-way when they calculate the buildable size of the lot. That’s really the point of our argument,” he said.

Curseaden said the lot would be 18,000 square feet without excluding for topography, marshland and the state’s right-of-way which crosses the property. He said zoning regulations over the years differed in determining marshland, and that the lot predates zoning regulations.

It’s a pre-existing, non-conforming building lot, is our position,” Curseaden said.

He said the purchaser with knowledge rule” typically refers to applications for change of use, such as changing from residential to manufacturing.

ZBA member David Laska asked if Altaf knew the lot was deemed not buildable when he purchased the property.

Curseaden said he did not represent Altaf at the time of the purchase. He said anytime someone purchases a vacant property, there’s always a risk whether they would be able to build there. He definitely took a risk to purchase the lot, but that doesn’t mean he doesn’t have a right to a variance.”

Curseaden said the status of the land was probably disclosed. Just because one person doesn’t think it’s a buildable lot, doesn’t mean you can’t get it to be a buildable lot,” he said, giving examples. There’s a lot of different ways to get something approved,” he said

When questioned by ZBA chair James Sette about the need for variances, Curseaden said: I believe the lot is a buildable lot without any variances, because of the history of the lot in conjunction with how the regulations were changed over time.”

The ZBA Speaks

Diana Stricker Photo

Prior to voting, the ZBA expressed their conclusions.

I don’t think this was ever determined to be a building lot. It doesn’t look like a building lot. I don’t think it should be a building lot. Therefore, your variances wouldn’t apply,” said ZBA member Leonard Tamsin.

Barry Beletsky said Altaf purchased the land with knowledge of its non-building status.

The hardship is self-imposed and self-created,” said Anthony Beccia.

There are too many variables here,” said David Laska.

Voting unanimously against the variances were: ZBA chair James Sette, and board members David Laska, Leonard Tamsin, Barry Beletsky, and Anthony Beccia. Member Peter Berdon was absent.

The Pawson Park neighbors applauded when the vote was taken.

We’re pleased with the decision,” neighbor Patricia Small told the Eagle after the hearing. We think the board made the right decision.”

Altaf told the Eagle he had no comment on the ZBA denial, and said he hasn’t made any decisions about the pending affordable housing proposal.

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