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

This week the Greenwich Planning & Zoning commission reviewed an application from Berkley Insurance Company who seek to demolish five existing structures on Davenport Ave and Steamboat Road and construct a new three story office building with parking.

The applicant’s global headquarters is in the large office building at 475 Steamboat Road, at the corner of Museum Drive.

The parcel is made up of 5 properties including a residence on the corner of Davenport, a parcel with an office and apartment, a parcel with the CT Ironworks offices and warehouse owned by the Margenot family. On Steamboat Rd there is the property at 537, which is an office building and to the south of that is parcel with another office building.

Each of the properties and their existing conditions have numerous legally non- conforming conditions related to the minimum requirements of the GB zone: Non-conforming setbacks, floor area, and both building and lot coverage coverage.

At the meeting this week there was no discussion about the commission’s previous request that the look of the proposed building better fit with its surroundings, which include the Delamar Hotel, the condos to the south where Manero’s once operated, and the harbor where the town’s ferry boats are anchored.

Specifically, the commission had asked the building to be designed to be more consistent with the streetscape, noting that Rudy Ridberg, the architect on the Berkley application, had designed the adjacent condos they described as attractive.

“If you did something like that here… You got the idea of where I’m trying to go to?” Ms Alban asked in June.

Continuing Nonconformities or Expanding Non-Conformities?

Instead of discussing the architectural design, this week, there was a focus on zoning theory questions related to nonconformity.

Specifically, the commission suggested that the merger of lots would not necessarily allow the property owner to expand or relocate the nonconforming structures and or uses.

The applicant argued the proposal was less non-conforming in all respects to the
current conditions.

The new building is proposed to be L-shaped.

Attorney Tom Heagney referred to state statute CGS 8-2(d) (4) that was amended several years ago to allow property owners to reconstruct properties using the existing non-conformities, without having to meet the current zoning regulations.

“This has had a bit of an impact on the activity at the Zoning Board of Appeals because now you can tear a building down, and reconstruct it without the need for applying for variances of various non conformities that exist on the site.”

Ms Alban said state statute referred to “(d) Zoning regulations adopted pursuant to subsection (a) of this section shall not…Prohibit the continuance of a non conforming use, building or structure, existing at the time of such regulations,‘ the point here being it’s a continuation within,” she said.

“We’re not really talking about an 8-2d question here,” she added.

Heagney disagreed.

“This is very much the approach we took on the analysis. You didn’t have to rebuild the same structure with the non-conformities. You can rebuild it as long as it does not exceed the non-conformities,” he said.

“We need to discuss is if you’re building in the existing footprint and putting back a structure in its place,” Alban said. “Otherwise you go into an expansion of a non-conformity, which is not what the statutory change was meant to do. It was meant to protect a continuation rather than the expansion of.”

Alban said the issue was significant.

Commissioner Mary Jenkins said she understood attorney Heagney’s reading of the state statute.

However, she said, “I’ve found that the intent is to maintain and continue the existing non-conformities. So you have a piece of property. It has a nonconforming building, nine ways to Sunday. You knock it down, you can recreate it. You can restore it, you can replace it, to exactly the same dimension of non-conformity as the original building. They don’t want blight because a building does not conform. But the issue is, once you demolish, what is your intent?”

“My concern particularly is you’re demolishing five buildings and not recreating any of them. You are not using, reusing, or re-adapting that same nonconformity on any of these parcels or this merged parcel,” Jenkins continued. “You’re not building two residences on the Davenport corner. You’re not putting up another iron works warehouse and offices.”

Jenkins referred to the Petruzzi case said, “This is something which adheres to the land because it is location specific, and attempts to add a new piece of property and move a non-conforming building onto the new property has been refused in the past.”

“If there is case substantiation for consolidation, reusing or relocating a non-conformity, I wasn’t able to find it,” Jenkins said. “This project represents to me the intent to abandon the existing non-conformity on this parcel.”

Ms Alban said that was the commission’s read of existing case law, but she invited Mr. Heagney to submit a brief arguing a different conclusion.

Alban noted that, in the end, it is only the commission that is the interpreter of the regulation.

“I think you’re looking at the case law in terms of continuing, where in fact you’re expanding into a completely different structure that occupies a new footprint,” she said.

Public Comment

During public comment, attorney John Tesei, testified representing the Delamar Hotel to say his client supported the application.

“I think Berkely Co has been a good citizen and specifically, as a neighbor to the Delamar, they have been as good as it gets in understanding our operations,” Tesei said. “I think it’s a matter of working out a logical solution here. I would say at the end of the day, the combination of the commission, the applicant and the ARC will be able to arrive at a building everyone is comfortable with. And I do believe the FAR is located on that overall site, and there is enough law here and enough uniqueness here for the commission to feel comfortable moving forward with Tom and the Berkely family in coming up with a rehabilitation of that section of steamboat Road that is needed and should be very welcome.”

Ms Alban said her impression was the Delamar was often underparked for the events they host.

“One of the reasons we’re expressing concerned about this building being potentially underparked is it aggravates the situation in the neighborhood,a nd thus would impact your client,” she said.

Second, she noted the commission had asked if the applicant design a building that could compliment the Delamar architecturally.

Alban said the commission would like to hear the point of view of the Delamar on the architecture.

She also said the commission continued to receive complaints about noise from Berkley’s existing office building.

“The noise is an ongoing issue,” she said.

Eric Zhang from Davenport Ave questioned the building’s height, noting the third floor of the office building would have a view straight into his home.

Another neighbor, Michael Creamer, who lives in an adjacent condominium, shared concerns including that the new building would tower over his house with there would be additional light and noise.

He questioned the placement of generators and AC units, and said he hoped the units that generate noise would be placed away from adjacent residential neighbors.

A letter from Mr. Creamer and his wife to the commission noted that neighbors on Indian Harbor Drive – across from the Berkley building at 475 steamboat Rd – had lodged complaints with Greenwich Police about noise from the building’s generators.

In fact, Harold Stillman of Indian Harbor Drive recently appeared before the Board of Selectmen to express frustration with the noise from the existing Berkley building. The town noise ordinance now falls under the purview of the Board of Selectmen.

The Creamers’ letter also talked about a desire for green screening around the proposed parking lot.”Today, at the WR Berkley building (475 Steamboat Rd) which borders Davenport Ave – they have an old fence that is not maintained and is an eyesore.”

The application will be continued at a later date.