P&Z Response to New Berkley Office Proposal that “Moves” Non-Conformities: “It’s not a coupon”

WR Berkley Insurance Corp went before the Greenwich P&Z commission on Tuesday with a proposal for an office building and a storage building across from the Delamar Hotel. The project spans multiple properties including 44-48-59 Davenport Ave and 537-545 Steamboat Rd.

All the properties are south of Berkley’s main building at 475 Steamboat Rd.

The commission reviewed a previous application but feedback was not favorable. The new pre-application highlighted better setbacks, more landscaping and fewer curb cuts.

However, the commissioners again took issue with what they described as “moving non-conformities” from property to property.

But the discussion started on the topic of noisy mechanicals.

Commissioner Peter Lowe said previously approved plans for a renovation at Berkley’s 475 Steamboat Rd building, which had yet to start, include replacement of mechanicals including on the building’s roof and addressing noise complaints.

“It’s not yet in a position to move forward,” attorney for the applicant Tom Heagney said of the renovation. “One of the things they want to have is a place to move to in the interim, which is the purpose of our getting together this afternoon.”

While it was noted the Selectmen’s office had done a site visit to conduct a noise test and determined the noise at 475 Steamboat was not in violation of the town’s noise ordinance, P&Z chair Margarita Alban asked Mr. Heagney if his client might consider proceeding with the equipment portion of the renovation and address the noise.

Mr. Heagney demurred. “I think it’s all part of the mechanical systems for the building. Not my area of expertise.”

Alban said neighbor complaints had been submitted about noise and alleged lack of care for existing trees on the Berkley property.

“That kind of commentary is not helpful to an applicant because it raises a question,” she said. “They have 17,000 sq ft of landscaping proposed for this project. Will that landscaping be maintained? Now the commission is on alert.”

Mr. Heagney said existing equipment complied with the town noise ordinance, and that compared to the existing rooftops and mechanicals on the commercial buildings, the proposed new building, set back from Davenport, would “provide the acoustic treatment so that the noise would not affect the residential property owners.”

Later, during public comment, residents across Smith Cove said they feared loud noise from mechanicals at 475 Steamboat Rd would be repeated under the new proposal, given the noise ordinance measures decibels in a way that fails to account for noise bouncing onto their porches and back yards.

Brian Levinson from Indian Harbor Drive, said that while noise at the foot of the Berkley building was 0 decibels, across Smith Cove it rose to 65 decibels.

“Could you imagine living with that every summer?” he asked.

Harold Stillman, also from Indian Harbor Drive, Zoomed into the meeting from his deck with a view of the Berkley properties. He said the town’s flawed noise ordinance meant noise would resonate from the new buildings, across the Oneida Preserve, to his and Mr. Levinson’s house, as well as Bruce Park Playground.

Ms Alban noted that noise was in the purview of the Selectmen, not Planning & Zoning. However, she suggested Mr. Stillman draft a revised noise ordinance that either she or Mr. Stillman would present to the RTM.

Stillman said he was very familiar with the ordinance and agreed to work on a revision.

Mr. Heagney went through several diagrams comparing existing buildings to what was proposed, emphasizing that setbacks would be met, there would be extensive landscaping and reductions in curb cuts. Currently there are 9 driveways: 5 on east side of Davenport, 1 on the north, and 3 on Steamboat Road. The new plan has just two curb cuts, and parking would be less non conforming.

The overall height of the new office building would conform by meeting the 40 ft maximum. The building would be reduced from 650,000 cubic feet to 589,000 cubic feet – a 36,000 reduction in cubic feet from the prior plan.

“We have a building that is consolidated, meets setbacks, meets height and has less volume than we submitted to you earlier,” Heagney said. “We are taking each parcel of the five parcels and what the conditions are on that parcel and addressing it.”

Commission Response

Commissioner Mary Jenkins said the proposal seemed to answer some questions, including the height and setback issues, and was sensitive to the neighbors on Davenport.

However, she said unfortunately the proposal would create new non-conformities.

“I still have not been able to find legal authority that you can take benefits of non-conformity and move them to a new location,” Jenkins said. “The legal issues of using the benefits of non-conformity appear to be the same as they were last time.

“Under section 8-2 of the statutes, I believe that we are allowed to maintain non-conformities,” Heagney said.

“What is protected is what exists. It’s not a coupon,” Jenkins said.

“You can’t take it and use the non-conforming characteristics of a structure and put it somewhere else on the property.”

“She’s saying, yes, you can keep the non-conformity but you can’t move it around to other buildings and other places,” Alban said.

Alban said that combined, the proposed buildings total 37,164 sq ft. Then, adding the proposed 2,000 sq ft for the office-related storage building brought the total to 39,000 sq ft, when the existing 29,000 sq ft of office is already non-conforming.

“You’re going beyond the issue of moving (the nonconformity) from lot to lot. You are expanding a non-conformity when you take the aggregate of the lots,” Alban said. “You are expanding the office space. The office space is non-conforming today and you are making it more non-conforming.”

Mr. Heagney said section town code reg 6-141 allowed moving from one non-conforming use to another non-conforming use as long as it’s not more detrimental to the neighborhood.

“That’s a use discussion. We’re discussing the dimensional non-conformities here,” Jenkins said.

“You’re expanding an existing non-conformity,” Alban said, noting the proposal added about 10,000 sq ft of office space.

“If we can’t have something similar to what we have on site now, this project doesn’t work from a financial standpoint,” Heagney said. “I’m not going to tear the buildings down as they are and rebuild them just where they are.”

“I don’t see how reading 6-141 doesn’t allow you to go from one non-conforming use to another. I’m taking my industrial use and getting rid of that, because the office use would not be more detrimental to the neighborhood, which is the standard that 6-141 has in it,” Heagney continued.

“There’s got to be a way for the commission can reach a positive conclusion that you’re doing something really good on the property. We need to find a way to do that, not a way to say no,” Heagney said.

“The problem is we can’t break our own regulations,” Alban said. “6-141 is very happy when you change one non-conforming use to a less non-conforming use, but we are talking about volume here. We’re talking about dimensions and not uses.”

“We’re reducing square footage and we’re reducing volume in a significant way,” Heagney said. “We’re 60,000 cubic ft less volume with what we’re proposing than what’s there right now.”

Alban said she was concerned about setting a “dangerous precedent.”

Ms Alban suggested Mr. Heavney write a brief citing the case law, explaining the proposal was not expanding an existing non-conformity.

“The existing office use is also non-conforming and you’re expanding it. That’s where I’m stuck,” Alban said.

Public Comment

During public comment, Michael Creamer from Davenport said the neighborhood had a significant parking shortage.

“The building is a large glass building. It looks like an office park, while everything in the neighborhood is masonry and bricks,” he said, adding that light would reflect onto his properties.

Also he said the plans showed 7 ft shrubs, which he said was misleading.

“It’s a bait and switch,” Creamer said.

Clifford Sanden, also from Davenport, said his concern was about sufficient traffic and debris management, both during construction and when the project is completed.

He echoed Mr. Creamer about the shortage of parking.

“Most of us spend some time in your neighborhood and we know that parking can get really tight. We’re aware of that. There will be phasing plans and given the proximity of the Delamar as well, it’s a good idea to make sure it’s coordinated,” Alban said.

“And Island Beach Ferry and the train station – it really is the center of the town,” Sanden said.

Sanden also said that Berkley had let ivy vines take over their existing trees.

“It’s also about neighborly relations and neighborly behavior, and we want a high level of that including complete compliance with plans every step of the way. My request to P&Z is to make sure there are detailed written plans that show explicit written consideration for these particular issues,” he said.

Alban said that after P&Z approvals, but prior to building permits being issued, P&Z director Pat LaRow and staff make sure everything is in place, including drainage, parking and sewer.

After public comment, chair Alban suggested Mr. Heagney write a brief citing case law and return for more discussion.

   

See also:

P&Z Watch: New Berkley Office Building, “Half-Baked and Needs to Be Put Back in the Oven”

Nov 30, 2024

Questions about Carrying over Non-Conformities Persist for Berkley Insurance Co’s Proposed Office Building

Nov 3, 2024

P&Z Watch: Could Proposed Berkley Office Building Fit in Better on Steamboat Rd Streetscape? 

June 17, 2024

Berkley Insurance Co Seeks to Demo Several Buildings in Area of Steamboat Rd, Construct New Office Building

May 13, 2024