STAMFORD – A Shippan Point homeowner who was denied an application to build driveways on a shared beach has sued the Zoning Board.
Gad Lavy and his wife, Samantha Lavy, charge that the Zoning Board “acted illegally, arbitrarily and in an abuse of its discretion” in rejecting their plan, which includes renovating the $3.2 million century-old colonial they bought last year, raising it above the flood plain, and moving their front door and driveway from Downs Avenue to the back of the lot on Ralsey Road.
There, the lot abuts a small beach, which the Lavys own along with their neighbor, Alison Malloy. The Lavys want to build Malloy a new driveway, too, to create a symmetrical entrance to their renovated home.
They want to build matching curved car paths on either side of the beach at the end of Ralsey Road.
The sticking point is that a number of the Lavys’ neighbors – no one’s sure how many – have access rights to the beach. The rights are written into their deeds, which date back 100 years.
Neighbors say the rights increase the value of their homes, and the beach is a cherished place where they relax, meet, celebrate birthdays and holidays, and hold weddings and memorials.
Those neighbors crowded a virtual meeting of the Harbor Management Commission in August, when the Lavys presented their coastal site plan for review. Neighbors said the driveways would pave over a significant portion of the small beach, shrink the entranceway, and limit their access to the shore.
Harbor commissioners, who act as advisors to the Zoning Board on coastal site plans, decided that too little is known about the rights enumerated in the neighbors’ deeds, and did not recommend that the application be approved.
It’s four or fail
Without a commission recommendation, four of the five Zoning Board members would have to approve for it to pass, instead of the usual majority of three.
In September the application got only three yes votes from the Zoning Board, and failed. On Nov. 30, the Lavy’s lawsuit was filed in state Superior Court in Stamford.
The couple wants the court to order the Zoning Board to approve their application and cover their legal costs. They also ask that the court grant such other relief as it deems “just and proper.”
According to the lawsuit, the Zoning Board acted “illegally” and “arbitrarily” by:
- Requiring four votes for approval, because the Harbor Management Commission exceeded its authority in issuing the negative recommendation that triggered that requirement
- Considering factors unrelated to the standards for a coastal site plan review
- Failing to consider evidence that the application qualified for approval
- Relying on factors outside the scope of the evidence
- Failing to apply the standards set forth in city zoning regulations and state law
The lawsuit states that the Connecticut Department of Energy & Environmental Protection found the project consistent with its coastal policies in May.
In June, the Stamford Harbor Management Commission’s Application Review Committee found that the project conformed with the harbor management plan, though members asked for additional information about drainage.
But, by August, committee members had heard about the deeds. They found, according to the lawsuit, that they could not recommend approval of the Lavy project “due to the unresolved differences between the applicant and neighbors concerning the extent of the neighbors’ deeded access rights.” The full Harbor Management Commission then agreed.
In zoning, deeds don’t matter
The lawsuit states that the Lavys’ attorney responded to the opposition, saying beach access “has not been consistently memorialized in deeds over the neighborhood’s century-old history;” and that deeded rights to property use “have no influence or part in the administration of a zoning law.”
Further, the lawsuit states, the Lavy project “will not interfere with any purported private access rights to Stamford Harbor,” but will “create a welcoming and beautiful access point” to the beach.
But Megan McGrath, who helped lead opposition to the project, said neighbors feel that the Lavys and the Zoning Board have not been open to their concerns. A small number of neighbors were invited to the Lavys’ meeting about the project, though a bigger group showed up once they heard about it, McGrath said. And the Zoning Board did not hold a public hearing, even though the Harbor Management Commission advised that they do, she said.
Beyond that, city officials have not attempted to provide more information about how many neighbors have beach access and what the deeds say, McGrath said. She and her neighbors on their own identified 46 deed holders, and think there are more, McGrath said.
Land Use Bureau Chief Ralph Blessing confirmed that his office, which supports the volunteer appointees on the Zoning Board, does not have information on the Shippan deeds.
“This is my concern – if these driveways are allowed now, what else will be allowed on the beach in the future?” McGrath said. “During that meeting, Mr. Lavy seemed to just be telling us his plans. He didn’t seem concerned about what we thought. And the city doesn’t seem concerned about what our deeds say.”
Heather Inman, another neighbor who led the opposition, said she wasn’t surprised to learn about the lawsuit.
“I think the Lavys will get what they want, because our voices aren’t heard,” Inman said. “The Zoning Board acts as if we don’t matter. They didn’t want to hear from us, even though the Harbor Management Commission did. The commission shined a light on our beach; they were protecting us. Aren’t they supposed to protect us? Isn’t that what the Zoning Board is supposed to do?”
Dr. Damian Ortelli, chair of the Harbor Management Commission, said the Lavy proposal included several benefits – it would reduce vulnerability to coastal flooding, improve drainage, and protect Long Island Sound water quality. But the commission also is charged with protecting public access to the shore, and that’s where the questions lie, Ortelli said.
“We pushed it to the Zoning Board and said, ‘This is a hot potato and you should look at it closely.’ We wanted to make sure that conversation happened,” Ortelli said. “We were concerned about public access, and the public outcry, and we thought it was an opportunity for the system to ensure that everybody’s heard. If we had just said, ‘OK, this project conforms with the harbor management plan,’ they could have walked right by any questions we had.”
The Lavys’ attorney, listed on the lawsuit as Timothy Smith of Carmody Torrance Sandak & Hennessey, did not return a request for comment.
According to the legal filings, the city hired an outside attorney, John Harness of the Law Office of John R. Harness on Summer Street, to represent the Zoning Board. Harness also did not return a request for comment.
Either did the Zoning Board chair, David Stein.