Appeal Stalls Nica’s Expansion

Don't judges care about jobs in the city? They should immediately throw out frivolous lawsuits like this.

That said, the entire business should be heavily fined and/or shut down if Nica's doesn't address the issue of illegal parking, which is likely to kill someone. Install barricades if the city transportation department is incompetent when it comes to this.

Good,

There is no hardship and therefore the variance was arbitrary and illegal.

"In the lawsuit, the neighbors argue that advice should have been followed. They argue that Nica's showed no legal hardship to justify the expansion, as required by law. "

If the judge concurs, that businesses seeking exceptions should demonstrate hardship--per the already written laws on the books--will the people who called me corrupt and biased and a litany of other bad names apologize?

There is a reason why the Deputy Director of Zoning recommended this proposal be denied--it is because he is a dedicated professional who seeks fair and impartial application of zoning laws.

Transparency is not a buzz word. If the BZA is going to make decisions which directly contradict written law and recommendations from professionals (Talbot is a professional--no member of the BZA is), then they MUST provide a justification. That justification MUST be publicly available, or ANY case they determine can be overthrown.

First, let me say I don't carry water for Nica's. I recommended denial in the past and banged my head against the wall when the conditions of an approval prior to that were ignored by both Nica's and the City.

This is a good reason to have an actual Zoning Enforcement Officer monitor compliance instead of relying upon over-worked building inspectors to perform a second job (without any extra pay BTW).

Putting emotions and past history aside Nica's had a valid argument in this case. The building needed modernization to ensure worker and customer safety. This latest proposal was a scaled back version of the preceding one that was correctly denied (it would have turned Nica's into a two-story restaurant). Yes, it involved expanding the footprint by adding a dedicated take-out isle, a new kitchen and new second story office. But it was reasonable to my mind.

But more importantly, It was also an opportunity to make sure, via conditions, that all previous Site Plan approvals were complied with and to legalize the outdoor seating. This would have greatly improved the site. Yes, they should have done that before but this was an opportunity to pressure the Building Department (zoning enforcement in this city) get some follow through while the matter was on the front burner.

I don't think that any further zoning relief could be justified. There would be no demonstrable hardship left in which to base an appeal. Zoning law permits nonconformities to expand to their natural extent; the baby elephant rule as they say. In this case the baby elephant would have grown up. How big the elephant gets to be is what the courts decide.

This application is a good example of the zoning grey area planners have to deal with almost every month. Not everything is black and white; experience and judgement come into play. A valid argument could be made to either deny, as Mr. Talbot recommended or approve as I would have done. And that's not unusual.

I don't blame the neighbors for taking this to court. They have a right to challenge the vote.

This is America, where citizens have the right to challenge a governmental decision in court. At least one of the appellants would seem to have a business reason to do so, as he landlord to a competitor.

Stephen--
do you think the plan they presented was the best one to address the problems with the building?

I tend to have a more minimalist view of zoning relief--all changes should bring the property more in line with neighborhood character, not more out of line. The size of expansion they were proposing seems really out of whack with the other stores in the neighborhood. Just look at P&M, which houses 3 separate businesses with less disruption to the neighborhood.

Like Stephen, I have no historical ax to grind--I shopped at Nica's today (and the day before yesterday). Nica's is one block from my office, and I often go there with my coworkers. Joe Sabatino is a great man, and his daughter seems interested in running a very neighborhood friendly grocery store.

The problem seems to be that the neighbors do not want to see an expansion and are unhappy with the reasoning and rationale of the BZA. This entire process could have been avoided if the BZA was more judicious and communicative in their decision making.

By not sharing their rationale for voting, they have endangered their vote.

SH,

You may state that you're not carrying water for Nica's but your argument is pretty soggy.

A hardship is required by law for a zoning variance to be issued. Saying, "my building isn't big enough for me to make more money" isn't a hardship. Putting so much stuff inside of your building that its difficult to move around is a self imposed condition and is not a hardship. Not managing deliveries or trash removal as well as other businesses in the neighborhood is not a hardship. In the case of Nica's, there is NO hardship, and therefore no variance should be granted.

I am frequently frustrated by the complete mess that Nica's causes to traffic and biking patterns on Orange Street. Though I must admit I am not as civically updated as some of the other commenters, who have written about the BZA process, I am a citizen who is concerned about Nica's disregard for the people whose lives share space with their market. An improvement in the way Nica's receives deliveries and handles the parking flow of their customers seems very unlikely to happen, if an expansion is allowed to go forward. Let's not forget about all of us regular citizens, in the push to make New Haven business-friendly. I hope the BZA stands firm in denying Nica's request.

orange streeter:
BZA actually approved--despite recommendations against approval--so, it is up to the court now to make a decision.

I suspect--based on the lack of supporting material for the case and Robn's spot-on critique that they have provided NO hardship beside one which was self-imposed--that the court will overturn this approval.

We'll see!

@robn,
I understand the legal meaning of hardship. Nica's (once just a butcher) claimed the building was antiquated for the approved deli use. Since butchers and deli's have very different floor plans one could foresee variances coming down the road. And they did. The isles were cramped, the kitchen outdated and too small (and even in the basement), and the office the size of a closet.

Since they were previously given approval for the use they have the right to make use of the building in a way that effectively accomplishes that approval.

They didn't use a profit motive (it's always understood but never said out loud) which would have been invalid. Unlike the last time they did't propose to expand the scope of the business, such as adding new product lines or a second floor for dining. They proposed to better organize an approved use by adding floor space to ease congestion and build a new kitchen and office. Would this mean more walk-in traffic? Sure. But adding an extra lane to expedite the lunch crowd doesn't change the fundamental nature of the business.

I didn't see anything unreasonable when they submitted this application. But it was right up to the edge which is why I understand the equally valid argument to deny based on the increased footprint and that they were outgrowing the space. Mr. Talbot's recommendation to deny was sound.

The other issues relating to the site plan should have been dealt with long before by way of an order to Cease and Desist. But that didn't happen. So this was an opportunity to see those items accomplished.

@streever,
The size of the expansion shouldn't be compared to other stores in the area, as tempting as that is. A variance, by law, has to make sense within its own context. There must be something about this building or lot, irrespective of other neighborhood lots, that warrants the variance. Again, context rules. Do I think this was the best proposal they could have presented? I don't know. It's not the city's job to be the site planner or architect.

The fact that you have a minimalist perspective, and err on the side of caution, is a good thing. It's the best default position to take.

I don't think zoning relief should be handed out like candy because it creates a permanent fact on the ground. Nica's has a long, tortured history that could have been a lot less tortured if they did what they were supposed to do the first time, or if a C&D was issued to make them comply, or if past BZA's read my advisory reports. But that's another story.

Like I said before, zoning is often shades of grey. When I was with City Plan we all frequently saw that grey area a little darker or lighter than the other guy.

Nica's should just call themselves the Unitarian Universalist church, and the NHI commenters would come down hard on their neighbors.

I don't know how you could move next door to a store and expect that it will remain exactly the same. Forever. Doesn't a business need to expand or renovate? Doesn't owning a piece of property give you some right to do that?

Remember when Cathy Weber didn't think Caseus should expand because she hadn't heard of a cheese shop before? And people in the neighborhood predicted it would become a biker bar?

If the city permit system is going to simply be a way for businesses to shut down and freeze out competitors, shouldn't this get the Jeff Kerekes cut-our-taxes crowd annoyed? After all, this is a "small business hamstrung by local regulations and an unaccountable board" story.

Hey Nica's We'd love to have you Westille! Please consider moving into this neighborhood, we have some great spaces to rent! And the neighbors are friendly!

SH,

Nice try... but you don't need a zoning variance to be better organized...being better organized is accomplished through a process called "space planning" and its done within the confines for the space you already have.

Enlarging a space in the City of New Haven, however, requires a zoning variance...and that can only be granted if there is a hardship...which there isn't.

@robn

My comments were pointed toward the legal nature of variances and how, many times, hardships fall into a grey area with equally valid arguments for or against. Where I stand is plain enough to see.

I'll reiterate that if someone is granted zoning relief to do something then they have the inherent right to pursue that to its natural extent. That principle is fairly well established in law.

Although courts generally give zoning boards wide latitude they expect decisions to be based on reason and clearly stated on the record. If this Board didn't do that then the court may very well rule in favor of the plaintiffs, or they may say their reasoning, although clearly stated is unsound. I've seen things go both ways.

SH,

There is NO gray zone. There simply isn't a hardship and therefore a variance should not have been granted.

BRIANM,

When Nica's was purchased the owners were aware that New Haven has zoning laws restricting land use. There is a set of rules (for everyone...not just Nica's) and a process to request relief... but Nica's simply doesn't meet the requirements for a variance.

I know virtually nothing about the BZA or the technicalities of what is going on, but I have to say that streever & robn's arguments make a good deal of sense.
...

I live around the corner from Nica's, and drive by/ park near the store often with no problems. It's one of my favorite parts of the neighborhood. I love walking over with visitors from out of town--it's the first place I want to take them.

I think there is a large (though less vocal) group of neighbors who love Nica's and would love a bigger Nica's. Indoor seating to enjoy a sandwich year round, perhaps?

I was involved in several community meetings on this development and the associated traffic and parking problems. There is a clear hardship, the employees cannot carry out their job without risk of injury, they need more space. Also if you are a neighborhood customer at lunch time trying to shop it is very difficult. So there are three people who object, at least one with a vested interest that is other than zoning. The community supported this project and there are many more of us. I hope that the appeal is denied. The new Nica's will be an asset to the neighborhood.

NICASNEIGHBOR,

I'd love to have a pony...but New Haven zoning law doesn't allow that either in East Rock.

I really don't understand why a business must show 'hardship' in order to expand their business.

What's so wrong about building ones business and at the same time adding more jobs, more products available to the community and yes, more money in ones bank account?

Edison
Look at Houston, where traffic deaths, sprawl, and pollution run rampant, for an example of what a city without zoning can accomplish.

Zoning helps preserve the historic character of a neighborhood--and makes the investments of a homeowner a stable bet.

Imagine if you could buy a house on Orange Street for nearly a million dollars, and in a year, see 3 night clubs move in next door. Not trying to suggest that Nica's is a night club, but giving you a more extreme case (which has happened in other areas) to help illustrate the point.

Zoning laws define an area by what is already present, and when used well, encourage future development that is complimentary to a broad consensus as to what the neighborhood should be.

This is why a business can't simply double the floor size of their operation without demonstrating a hardship, which is a legal term, meaning they are unable to find any profitable use of the space at all without making the change.

David, the issue is not zoning, it is community. This has been a contentious issue for a number of years. In the last round Nica's approached the community, we met several times and we feel that what they want to do is in the best interest of the community. There may be zoning technicalities but the community is in agreement with the proposal. Hopefully the appeal will fail.