An Old Saybrook zoning issue made the evening news on Feb. 19, but no television cameras turned up for the Zoning Commission (ZC) meeting later that night.

The Eyewitness News 3 story focused on controversy over a patio installed in front of the Connecticut Cancer Foundation (CCF) building at 15 North Main Street. That patio, in the shape of a baseball diamond, was not included in the original building plans that were submitted and approved by the ZC in 2016 and the ZC has said it must be removed. The matter is the subject of a lawsuit filed last March in Connecticut Superior Court.

CCF President and Executive Director Jane Ellis reached out to the press in advance of the Feb. 19 ZC meeting. In an email of Feb. 13 to the Harbor News, Ellis requested that the paper send a reporter to the meeting, saying that the “CCF is being harassed by the Town of Old Saybrook regarding the paver patio...that we put in front of the building that was noted as grass on the original landscape plan.”

Eyewitness News 3’s coverage may have been prompted by the Feb. 18 column “Is Old Saybrook really looking for a fight with Ellis family over zoning issue?” by Mike DiMauro, assistant sports editor at The Day, a regional daily newspaper based in New London. The Day Publishing Company owns both The Day and the Harbor News, which maintain independent newsrooms.

In pleading the case of Jane Ellis and her husband John Ellis, CCF’s chairman and founder, DiMauro described the ZC’s actions in adherence to the town’s zoning regulations as “lunacy.”

“Does Old Saybrook want national acclaim as The Town That Hates Cancer Patients?” DiMauro asked.

The CCF is using the paver bricks to raise funds—donors may have them inscribed with their own names or in honor of someone else. According to the minutes of the Jan. 9, 2019 Zoning Board of Appeals (ZBA) meeting, Jane Ellis stated that 50 people had “signed up for purchasing bricks”; the patio currently includes more than 70 bricks inscribed with donor messages.

(Note: An earlier version of this story incorrectly stated that approximately 10 bricks were inscribed.)  

15 North Main Street

The CCF, having purchased the property at 15 North Main Street, was granted a special exception from the ZC in August 2016 to build an addition onto a historic structure and for its use as a philanthropic organization. In the original plan, which was approved by the ZC, the building’s main entrance was in the rear, accessible from the parking lot, and there were no walkways from the sidewalk to the front of the building. The front landscaping was to consist of grass as well trees required by zoning regulations for the B-2 zone in which the property is located.

When the building was completed in late 2017, the patio wasn’t the only discrepancy between the original approved plan and the finished product. Street trees, which were required every 40 feet, had not been planted. Two walkways had been added, and some of those pavers extended across the boundary line onto neighboring property. These changes prevented Chris Costa, the town’s zoning enforcement officer (ZEO), from signing off on the Certificate of Zoning Conformity, which is required to obtain a certificate of occupancy (CO).

Decisions by the ZEO may be appealed to the ZBA within 30 days, but CCF did not pursue this. Instead, on Dec. 3, 2018, it asked the ZC to modify its special exception permit to allow it to add trees and keep the patio.

Members of the ZC noted at that meeting that the pavers used to construct the patio are impervious—they don’t allow for proper drainage, as does grass, and the spaces between them are not adequate.

It was also determined during the meeting that the CCF’s hours were more extensive than those submitted in its approved statement of use: The organization was holding twice-monthly board meetings as well as occasional functions in addition to regular business hours.

The ZC voted to allow modifications to the special exception permit with conditions: The pavers extending across the property line were to be removed, the patio would be removed so that the only paved area was a five-foot walkway, and a new tree was to be planted between the building and the sidewalk. In addition, the statement of use was to be amended with updated operating hours.

Zoning Board of Appeals

Decisions of the ZC can be appealed in Superior Court. CCF opted instead to apply to the ZBA for a variance on the zoning regulations. The purpose of a variance is to relieve a property owner of zoning regulations that create a particular hardship.

On Jan. 9, 2019, CCF made the argument to the ZBA that the “ornamental plaza” constructed of paver bricks should be considered landscaping, and thus allowed under the zoning regulations.

The town’s attorney, Michael Cronin, “questioned the ZBA’s authority to modify, reverse, or overturn a decision of the ZC,” according to meeting minutes. “The ZBA had no authority to reverse the conditions of a Special Exception,” he said.

The hearing was continued on Feb. 13, 2019, when a letter from Mark Branse, attorney for the ZC, was read into the record. In it, he contended that CCF’s application for a variance was “an attempt to appeal a decision of the ZC using a procedure that is not authorized by law.

“The developer had two...legal opportunities to challenge the status of this patio, first when the ZEO refused to grant the Certificate of Zoning Compliance, and, second, when the ZC refused to allow...the patio,” the letter stated.

He also contended that wanting a patio instead of a landscaped area was not a “hardship that the law would recognize” and, to the extent it is a hardship, it is “self-created,” because it could have been included on the initial plans and should not have been installed without prior ZC approval.

Cronin stated that he agreed with Branse’s letter and said that the ZBA did not have the right to hear the CCF’s request for a variance.

In response, the CCF claimed that zoning regulations included “ornamental plazas” and “decorative paving” as landscaping, and pointed to other properties in town that had similar patios and had been permitted by the ZC.

The ZBA approved the variance with four in favor and one member abstaining.

On March 1, 2019, the ZC filed a complaint in Superior Court stating that the ZBA’s granting of the variance was illegal, as there was no hardship and the ZBA did not have jurisdiction.

Feb. 19 Appeal

At the ZC’s Feb. 19, 2020 meeting, CCF’s attorney Edward Cassella appealed to the ZC to “apply an open mind, to approve a modification of the special exception, and hopefully to end the appeal of the ZBA decision.”

While he acknowledged that “[t]he Ellises....made some mistakes, they did a bit of overbuilding, they did a bit of extra landscaping,” Cassella contended that “I don’t think they’re the only wrong people here. There’s also your front landscape area regulation, which, if you read it, is a very overly strict regulation that I don’t think has been consistently applied.”

Cassella presented a list of commercial properties in town that, he asserted, show an inconsistency in the way the ZC interprets or applies zoning regulations. ZC Chairman Bob Friedmann, however, with the aid of materials provided by Costa, explained later in the meeting that the properties listed were in different zones, were approved before the zoning regulations were amended, or had circumstances different than those of the CCF.

Cassella also proposed that the regulations be amended to allow “non-green landscaping” and suggested he work with Costa to make those changes.

The building of the patio, Cassella maintained, was an opportunity the CCF couldn’t pass up.

“Torrison Stone [& Garden of Durham] said, ‘We have a window of time and we have about $35,000 worth of material and labor that we can donate to you for this piece of property,’” Cassella said.

The CCF “didn’t understand that what was approved was what needed to be built and varying from that, when it came to landscaping in particular, would need the approval of the commission,” he continued.

“It never even occurred to me that this was not okay,” Jane Ellis told the ZC. “And I think I’m a very honest person. I’ve been helping cancer patients for 33 years raising money.”

Ellis said that as a taxpayer, she questioned the use of town funds to sue another commission as well as a charity.

“And you’re doing it over pavers,” Cassella said.

Friedmann said that the ZC is suing the ZBA not over pavers but “over granting a variance beyond their authority.”

“Do you have the authority to grant us the special exception for these pavers tonight and put an end to taking your appeal to court, taking us to court?” Ellis asked.

“Technically, we don’t, because we’re not allowed to vary our regulations,” Friedmann said. “And in part, this stems from...the fact that you’re asking for forgiveness rather than permission.”

“What’s wrong with that?” Ellis responded. “We didn’t know.”

John Ellis told the ZC that he does have experience with zoning regulations and building projects.

“Your decision to rely on the strictest reading of the zoning board is something that I’m having difficulty with,” he said. “I’ve served on planning and zoning boards in East Lyme. I’ve worked with many developers over the years, and to deny anybody an opportunity to put in a landing area that provides safety and access to the public is beyond me.”

The ZC’s motion to approve the modification of the special exception and allow the patio to remain was denied by a vote of four to one.

Mediation in the case did not lead to a resolution and the lawsuit, which was originally scheduled for March 2019, has been continued to June 2020 in Hartford.

Fortuna Weighs In

The following morning, First Selectman Carl P. Fortuna, Jr., weighed in on the matter in response to a question from a resident. He and State Representative Devin Carney were at the Parthenon Diner to offer an update on the start of the 2020 legislative session.

Fortuna said that he considers Jane and John Ellis friends and has donated to the CCF, but he objected to DiMauro’s call in his column for Fortuna to inject himself into the business of the ZC.

The column “was written by a sports writer who knew nothing about the land use regulations in this town,” Fortuna said. “And what that sportswriter was saying from what I can tell is that Carl Fortuna should get involved in a zoning issue because John Ellis was a major league baseball player and a son of New London. That sounds like corruption to me.”

Later, by telephone Fortuna said, “It is not my role to inform an independently elected board how to do their job.

“Chris Costa, our ZEO, is one of the most knowledgeable, if not the most knowledgeable land use people in the state of Connecticut and the town of Old Saybrook is fortunate to have her,” he added. “And the people of the town of Old Saybrook are fortunate to have her working for them.”