Thomas Breen photo
Duncan’s Carolyn Kone, city’s Roderick Williams in court Monday.
Some details of a developer’s plans for how to rebuild a landmark New Haven hotel will be decided in Hartford, not New Haven.
That’s because a lawsuit filed by the new owner of The Hotel Duncan against the city’s Board of Zoning Appeals (BZA) has been transferred to a Hartford-based land use docket.
There, a state judge will decide whether or not the BZA’s recent denial of the developer’s special exception applications was, as the suit claims, “unreasonable, arbitrary, capricious, illegal, an abuse of discretion, in violation of the Zoning Ordinance and not supported by substantial evidence.”
Hartford Superior Court Judge Marshall Berger signed off on the case transfer Monday afternoon, following an April 25 request from local attorney Carolyn Kone.
Kone, who is representing the Chicago-based developer, AJ Capital Partners, first filed the suit on March 8, two weeks after the BZA denied without prejudice two special exceptions the developer needs in order to complete its conversion of the former Hotel Duncan at 1151 Chapel St. into a 72-room college-themed boutique hotel.
The Hotel Duncan, under construction in January.
“This case raises important questions about due process and fundamental fairness in the consideration of Plaintiff’s Special Exception Applications for a hotel liquor permit and a reduction in parking,” Kone wrote in her application for the case to be transferred to the Hartford-based Land Use Litigation Docket, which specializes in hearing planning and zoning-related suits.
Kone and city Assistant Corporation Counsel Roderick Williams appeared together before state Superior Court Judge Thomas Carradino at 235 Church St. Monday, where they discussed potential court dates in the event of the land use judge’s denial of the requested transfer. “We’re so anxious to get this one resolved,” Kone said.
The lawsuit stems from the BZA’s four-to-one vote at its Feb. 19 meeting against the Duncan developers’ special exception requests.
The requests were for a hotel liquor permit that would allow a restaurant planned for the ground floor of the new hotel to serve alcohol, as well as for a concomitant reduction in required on-site parking from 59 spaces to one space.
The board, led by two members loosely affiliated with the local UNITE HERE unions, voted against the applications on the grounds that the developer had not yet submitted an off-site parking agreement that would reserve a certain number of spaces at a nearby Yale-owned garage for hotel guests, and that the developer had failed to secure the support of neighbors.
The local unions have opposed the hotel development at various turns over the past 18 months because of an ongoing dispute over whether or not the hotel workers would be allowed to unionize (even though the developer said that he is OK with having his employees unionized, and that it was the union who walked away from the negotiating table.)
In her initial complaint filed with the state Superior Court, Kone argued that the board’s stated reasons failed to provide sufficient legal grounds for denying the applications.
Click here to read a copy of the suit.
On the one hand, she wrote, the city had initially required the developer to provide a signed parking agreement with Yale after the BZA had ruled on the special exceptions, not before. Plus, many people did come out to support the project during the public hearing on the matter, including local business owners, neighborhood development boosters, and even the neighborhood’s alder.
The board did not take into consideration any of that testimony during its deliberations after the closing of the public hearing, she wrote, nor did members reference the City Plan department’s positive advisory report for the applications.
“There was no resolution passed by the BZA or statement of the collective reasons of the BZA for denying the Plaintiff’s Applications,” Kone wrote, “or consideration of any of the evidence produced at the Public Hearing which supported the approval of Plaintiff’s Applications.”
“Although it is impossible to determine the basis of the BZA’s denial of the Plaintiff’s applications due to the lack of a resolution or any motion stating the collective reasoning of the members of the BZA,” she continued, “to the extent that the denial of the Plaintiff’s Applications was based upon a finding of an ‘incomplete application’ due to the BZA not having been provided with a copy of the Valet Agreement, this finding is unsupported by substantial evidence and is based upon errors of law”.
In her request that the case be transferred to the Land Use Litigation Docket, Kone doubled down on her argument that the developer was not required to, and had not even been asked to, provide a signed copy of its parking agreement with Yale to the city before the BZA was to decide on the merits of the special exception applications.
“The BZA’s denial of the Applications (for where there was no collective statement of the reasons),” she wrote, “was unsupported by any evidence, let alone substantial evidence.”