Zoning Board of Appeals Votes on the "Miss Patsy's" case

The Zoning Board of Appeals met this evening at 5:30. The main item on the agenda was "old business", namely, the Parslow/Bennet appeal of the decision by Zoning Enforcement Officer Bruce Driska to allow the continued operation of Miss Patsy's hotdog stand at 980 South Main Street despite the Appellate Court's decision to uphold the Superior Court's decision in favor of Parslow/Bennet.

It's a complicated case. For earlier coverage and commentary in the Eye, click here and scroll down a bit.

To open discussion, Officer Driska gave a brief recap of the case, a main point of which was to observe that the public hearing was closed as of the last meeting. At the beginning of discussion a mini-crisis emerged in the form of a letter from ZBA member Judy Pehota who could not be in attendance due to a conflict. The letter was sent to Chairwoman Annabel Resninsky and was written to express an opinion on the appeal. Mr. Driska advised against reading the letter aloud to any of the members or to the public, since it would constitute a form of public testimony. Attorney John Bennet, representing Christopher Parslow, rose on a point of order to concur with Officer Driska's opinion, and added that reading the letter could put in jeopardy any action the Board takes in the case. Chairwoman Resninsky noted her disagreement with the opinion of Officer Driska, but the letter was not read aloud. Instead Chairwoman Resninsky began discussion by stating in detail her changed opinion of the case after having reviewed the copious documentary evidence and public testimony. (The files in the case are well over an inch thick and, in answer to a later question, took many hours to review.) In her view the Parslow/Bennet appeal had merit, she concurred that there was no evidence that a hotdog stand had been on the corner in question, and she agreed with the courts' decisions on the matter.

ZBA member Chris Beauchemin then spoke at length, also in favor of the appeal. He addressed the question of the previous existence of the stand, of which there was no evidence of any sort beyond activity in the form of an occasional church stand. He noted Planning, Conservation, and Development Director William Warner's early testimony concerning the original application of Mylchreest Construction Services, the owner of the site in question, for a continuation of the non-conforming use of the lot, in which no mention was made of anything beyond the original construction equipment storage garage on the footprint of the original building. He also pointed out that the current use by Miss Patsy's was not at all comparable to past use, or even to claims of past use. And he concluded by stating that because the current use of the lot violates the zoning code, he was supporting the appeal.

ZBA member Martin Reardon agreed with both Chairwoman Resninsky and Mr. Beauchemin. The fourth member present was Robert Stefurak. The motion to support the appeal was read, and the vote was taken. Four in favor of the appeal, zero opposed, zero abstentions.

Attorney Bennet thanked the members of the Board for their "extended attention" to the case. [Update @ 9:15 p.m. Christopher Parslow sent the following statement via email: "We're grateful for this positive outcome to our appeal, which has been a long time coming."]

The only other item on the agenda was new business, an application for a variance in an R-30 zone at 144 Saddle Hill Drive. This issue actually preceded the Parslow/Bennet appeal. The applicant, Jodi Lapham, requested that she be able to build her shed closer to the back of her lot than is allowed due to poor grading and moisture issues in the center of the site. Ms. Lapham made a brief statement. The required set back is 30 feet; the back of the shed would be 18 feet from the line. The builder did a bad job grading the lot, which causes water to pool and drain across the middle of the lot. After discussion about the nature of the problem, and a review of the zoning code guidelines concerning imposed hardships, a vote was taken. It was unanimous in favor of the applicant.

After adjournment, Officer Driska informed the Board members that Ms. Pehota's letter offered the same opinion on the Parslow/Bennet appeal as had been expressed by Mr. Beauchemin and Chairwoman Resninsky.

Middletown Power Plant asks for Wetlands Map to be redrawn

The diesel-fired power plant on River Road appeared before the Inland Wetland and Watercourses Agency tonight, to argue that about 2.5 acres of land near the eastern border of their 65 acre lot was incorrectly designated as wetlands on the city maps. The Agency was not completely satisfied with their evidence and asked for more information to be brought to the June meeting.
Bob Spooner, with Middletown Power, explained that the area they wished to remove the wetlands designation from was used until the late 1960s as a dumping ground for ash from the former coal burning power generator. He estimated that the ash was as much as 30 feet deep. He said the land was currently used for putting dredgings from the river when they clear the barge docking area.

Andrea Steele, a consultant for Shaw Environmental, hired by Middletown Power, said that the test bores done by their soil scientist showed no evidence of wetlands soils, and no hydrological evidence of wetlands. "We're here to correct the wetlands map within the site." Bruce Driska, the city's Zoning Enforcement Officer, told the Agency's members, "I've been out to the site and we've accepted that this is a solid application."

However, the members of Inland Wetlands were not satisfied with the information that was provided. They specifically requested that the soil scientist hired by Middletown Power be present at next month's meeting, to answer their questions.

In other business, the Agency approved the redirection of a stream near Julia Terrace (southwest of the intersection of Randolph Road and Route 9). They also ruled that no permit was needed for a slight change to a septic leach field being installed on a previously approved site plan on Sachem Drive.

Driska reported on a fish kill on Atkins Street. He said that his investigation found one fish part, "about the size of a small child's hand," in the vicinity of several geese on the property. The Agency members accepted his speculation that the piscatory demise was a fowl act.

Zoning Board of Appeals hears public testimony on Miss Patsy's Hot Dog Stand

The Zoning Board of Appeals met yesterday (Thursday) evening, from about 5:30 to 7:30. The meeting began with a review by the acting chairwoman, whose name I didn't get (apologies), and Bruce Driska, Zoning Enforcement Officer for the city, of the reasons for the delay in resolving the present appeal (see *note* at bottom), the circumstances which led to the current meeting's continued inability to issue a final decision (the members haven't yet sufficiently 'experted' themselves on the many interesting twists and turns of the case), and the decision to hold the public hearing in any case (to at least complete the record of testimony and move things along). It was unclear at first whether an actual quorum existed, but the fact that an entirely new member had been seated (sorry, I can't recall that name either) seemed to resolve that issue. (Nevertheless, the quorum present did not include all the members who are voting on the case.)

When we finally did get under way with public testimony a new conundrum presented itself. The chairwoman had, in initiating the proceedings, called for those in favor of the applicant to speak first, after which those opposed could follow. So after Atty. Bennet (representing Christopher Parslow, the applicant) said a few introductory words, Jennifer Saines of High Street went up to the microphone and read her letter in support of Mr. Parslow. The chairwoman let Ms. Saines finish and thanked her, but then added that she had in fact spoken out of turn -- since the chairwoman had asked for those speaking in favor of the applicant to go first. With everyone in the room scratching their skulls, Atty. Bennet pointed out that his client was, in fact, the applicant, so Ms. Saines had spoken in the correct order. Apparently the confusion revolved around the fact that speaking against the continued presence of the hot dog stand constitutes speaking in favor of the applicant. One can thus be opposed and in favor at the same time. (I often find myself in this position at home, so I caught on right away.) This led to a new round of discussion between Mr. Driska and the chairwoman, at the end of which it was in fact determined that Ms. Saines had spoken in the correct order, and the chair apologized for the confusion and asked, for clarification, that every speaker clearly identify whose side he or she is supporting. So Ms. Saines re-approached the podium to say, for the record, that she was speaking in favor of the applicant, Mr. Parslow, as represented by Atty. Bennet. Then a parade of public testimony followed by various members of the public, whose comments ranged from supporting Mr. Parslow to supporting Miss Patsy's (and the lot owner, whose name slips my memory, but all documents relevant to the case can be read here).

The public comment revealed a continued variety of assertions about the alleged prior existence of a hot dog stand on the corner back in the day, as well as the nature of that stand -- though these questions, it should be noted, have been decided by the courts (which, in fact, is why there is currently an appeal to the ZBA). The comments on the mysterious hot dog stand were interesting as a question of historical memory, and as I am a historian, despite my inability to remember names, I will review some of those comments here. Some people claim that they recall going to get a hot dog on a regular basis, while others claim that the sale of food at the site was nothing more than a church bazaar held once a year. One speaker pointed out that the Cyprus Restaurant and Grill down the street (across from the Monte Green [now Haveli]) was formerly known as the Cyprus Diner, and that many people who took the bus to New Haven would stop there to get a hot dog. One person, whose birth date ranged from 1938 (according to Atty. Dowley, representing Miss Patsy's et al) to 1958 (according to the person himself), recalled getting hot dogs as a child in the 1960s and feeding the deer (in fact, I think he even said reindeer, but that could simply by my own memory issues kicking in) at Sanibel across the street. The chairwoman noted, in questioning Atty. Dowley, that she had spoken to two or three long-time residents along South Main and Randolph Road, "who'd lived there 75 or 80 years," who had no memory of a hot dog stand at the corner in question (Randolph and South Main). She added, "it would be wonderful if you could just provide a photograph or some hard evidence to back up your case." Atty. Dowley acknowledged that evidence of this sort would be wonderful, but that he couldn't "simply invent it". The owner of the lot stood up, toward the end of the public comment session, to state that the reason the stand was not shown on the survey that he had had done was that surveys do not include trailers and temporary structures, and that the stand in question was simply a cart with an umbrella. (This and another survey, by the Highway Department, had been introduced as evidence in the Superior and Appellate court cases that preceded (and necessitated) the current appeal; according to Atty. Bennet, it had been proven to the satisfaction of those courts that while a church bazaar may have been held intermittently at one of the two adjacent lots in question [which have since become one lot, adding to the confusion in the case], there was no evidence of a permanent or semi-permanent structure at either lot. The current structure, as I understand it, is a trailer that is connected to both water and power.)

Atty. Bennet's description of the court's decision is, in fact, backed up by the documents from the case, available online. Here is the relevant excerpt from the Appellate Court's affirmation of the original Superior Court decision (I think I have the order correct), issued 16 September 2008, on page 11 of the city's pdf file (note that most of the punctuation was rendered invisible in the scanning of the document):


All in all, it was a surreal evening.

[Full disclosure: During the public comment I spoke in favor of Mr. Parslow's position. And I am related by marriage to Ms. Jennifer Saines.]

*note*: the 'appeal' technically is an appeal of the November 2008 decision by Mr. Driska, the current Zoning Enforcement Officer, to not abide by the findings of the Appellate Court's affirmation of the Superior Court's upholding of the original ZEO's cease and desist order back in the early years of the millennium.