Clinic Vote Sparks ​“Originalism” Debate

A new counseling center won approval to move into a Westville office complex — after a debate about how close zoning commissioners should hew to the letter of the law in making decisions in New Haven.

How much leeway should they give to neighborhood context, legislative intent, and their own individual discretion?

That legal exegesis and subsequent vote took place Tuesday night during the latest regular monthly meeting of the city Board of Zoning Appeals (BZA).

The two-and-a-half-hour virtual meeting took place online via the Zoom videoconferencing platform.

The application in question involved Waterstone Counseling Centers, a Madison-based therapy practice that focuses on patients with PTSD, depression, and drug and alcohol dependence. In some cases, Waterstone co-founder Tom Abbenante said Tuesday, his clinic uses medications like suboxone to treat patients with substance use disorders.

Abbenante and local architect Sam Gardner said that Waterstone is looking to open up a new outpost in a rented, 2,150-square-foot space in the Westville office complex at 446A Blake St.

“We have a lot of clients coming in from New Haven” to Waterstone’s Madison office, said Abbenante (pictured). ​“We thought it would be a good idea to repeat that model in New Haven.”

He said the clinic would be open at most from Monday through Friday, 9 a.m. to 5 p.m., for individual appointments and, if needed, group therapy.

Everyone who spoke up during the public hearing section of the night praised the clinic’s imminent arrival in the neighborhood.

“We have a definite need in Westville for medication assisted treatment for depression, substance abuse, and opioid addiction,” said local attorney and Westville resident Ben Trachten. He said he would welcome a clinic like Waterstone ​“as long as it’s well run.”

Westville Village Renaissance Association (WVRA) Executive Director Lizzy Donius (pictured) agreed. ​“Welcome, guys,” she said to the applicants. ​“It’s great to have you around.”

Fellow Westville resident Sharon Jones similarly threw her support behind the proposal. ​“I think it would be great,” she said. ​“As a therapist also, it’s well needed in the Westville area.”

Applicant: This Is Basically An Office Use

Where the clinic ran up against a potential roadblock was in the underlying zoning of the office complex itself.

Gardner (pictured above) said that, before Waterstone could officially move in, it needed a use variance from the BZA that would allow for a health care clinic to operate in the Planned Development District (PDD) that has governed that Blake Street office complex since 2006.

That bespoke set of zoning regulations, layered on top of a light industrial IL District, permits office and residential use as of right, but prohibits medical uses.

“It’s almost an inconvenient idea that they happen to be a medical company,” Gardner said about Waterstone. He and Abbenante said that 90 percent of Waterstone Counseling’s operations fit within the parameters of a typical office use — and that the 10 percent that involve medication assisted treatment can comfortably fit within the bounds of their intended office space.

“The potential tenant essentially meets the criterion of an office use, other than the fact that their business has a medical component,” Gardner continued. ​“I would also make the case that office buildings are struggling right now for tenants. A good tenant comes along with a great track record in other towns. There’s no intensity of use here that would be out of conformity with a typical office use.”

Furthermore, Gardner said, if Waterstone wanted to move into an office space right across the river in the area closer to Westville Village center, they’d be able to set up without any zoning relief required. That’s because that part of the neighborhood is a designated BA General Business district, which does allow for health care clinics as of right.

Gardner called on the BZA grant the use variance and let Waterstone open up based on numerous arguments: The alders who crafted the PDD appear to have done so to encourage office use. This clinic is essentially an office use with a small medical component. Neighbors have spoken up in support of the project. The clinic would be allowed just across the river with no zoning relief necessary.

But What About The (Land) Law?

Not so fast, replied new zoning commissioner Alexandra Daum.

While Waterstone may be very similar to an office use, it is technically — and legally — a medical clinic.

And while the district across the river would allow for a medical use as of right, the office complex in question does not, as it is covered by the more restrictive PDD.

Daum pointed out that the legal threshold for receiving a use variance is a high one. An applicant must prove a so-called hardship in the land that demonstrates that the underlying zoning regulations allow no reasonable use of a property in question due to the unique conditions of the property itself.

“What is a hardship to them is the way it’s currently zoned,” Daum said. ​“It sounds to me like the way to amend that is to change the zoning.”

That is, there appears to be nothing intrinsic to the property itself that is preventing this business from opening where it wants to open. Rather, ​“the zoning is the hardship,” because it explicitly prohibits medical use.

Daum said this presents an issue to the commission because it may set a dangerous precedent for other businesses seeking zoning relief simply because they don’t like the local land use law that applies to their part of town.

If the BZA granted a use variance to this office-medical clinic simply because the applicant wished the zoning were different, she said, then any business that wants to side-step the zoning of a particular area could argue that the zoning laws don’t work for them, and therefore they should get special treatment in the form of a use variance.

“I have no issue with the use” of a medical clinic in this office complex, Daum said. ​“It would be great to be able to put that space to productive use. It just doesn’t seem to me to hit the bar” of proving that there is a hardship intrinsic to the property itself. ​“I just don’t think it would be internally consistent” with what zoning law requires the commissioners to do.

Trachten (pictured) raised his hand again to address the board.

In addition to being a Westville resident and an experienced land use attorney, he used to chair the BZA. He told Daum and the rest of the commission that the zoning board is presented with these types of quandaries all the time.

In many cases, he said, local zoning law is 60 years old. He stressed that getting the law changed — for a district in general, or a PDD in particular — is an exceptionally time consuming and difficult process. He lambasted as ​“embarrassing” what zoning updates alders do choose to focus on, such as creating a ​“cat cafe” designation in the local zoning use table.

“You’re not applying the law,” he said. ​“You’re applying a set of circumstances to these regulations that were written in 1963 in most cases.”

Trachten added that ​“every single piece of property is unique. What you do for one you don’t have to do for another.”

Commissioners must use their discretion when evaluating zoning relief proposals, he continued. ​“You have the common sense and discretion to deny applications that you don’t deem legitimate.”

“If you follow the strict rule, which is definitely a possibility, nothing would ever get done in the city. I caution you against it.”

Fellow BZA Commissioner Ann Stone (pictured) agreed. Before taking her vote in support of the proposed use variance, she said that Waterstone’s planned use of the space as a ​“therapy office is substantively the same” as the type of office use already allowed by the PDD. Because of that, and because of the fact that a BA zone across the street would allow this kind of use, this clinic should be allowed to move in.

When BZA Chair Mildred Melendez called a vote and took the roll, each commissioner voted in support. By the time she called Daum’s name, the new commissioner unmuted her mic, took a pause, and cast her vote.

“Approved,” she said.