Recently, in Tagliarini v. New Haven Board of Aldermen et al., the Superior Court of Connecticut denied an appeal from a decision of New Haven’s zoning board that authorized a zoning amendment creating a Planned Development District for the Yale School of Management’s new Norman Foster-designed campus. The amendment has allowed Yale to proceed with the construction of a 230,000-square-foot, LEED Gold-hopeful building that is the centerpiece of the development. (A PDD is a New Haven-specific tool that effectively allows large-scale projects to proceed expeditiously by carving out a new zoning area within an existing one. The enabling legislation calls it “a legitimate legislative act by the city to regulate growth and meet the need for flexibility in modern zoning ordinances.”)
In order to determine the legality of a PDD, Connecticut courts must consider (1) whether the zoning amendment is in accordance with the comprehensive plan; and (2) whether it is reasonably related to the city’s police power. The purpose of a comprehensive plan – as opposed to a master plan – is to prevent the arbitrary, unreasonable, and discriminatory exercise of a city’s zoning power. Effectively, the comprehensive plan “serves as an effective brake upon spot zoning.” (Spot zoning is the application of zoning to particular parcels of land within a larger zoned area where the new zoning is contrary to the jurisdiction’s master development plan and general zoning restrictions.)
The appeal is notable for our purposes here at GRELJ because New Haven’s Comprehensive Plan:
underlines a concern with the environment. [It] states as a goal: “to promote the urban environment through energy efficient design, green spaces, community gardens, arborist work projects, and other pervious landscape treatments. . . . To achieve [high-end business development], attention must be paid to environmental design, pollution control, aesthetics, transportation/access, and the public infrastructure within and around the city’s business districts.” In a following paragraph entitled Green Design it notes . . . “attention must be paid to green building design by encouraging the development of environmentally-sustainable buildings that meet or exceed energy targets (e.g. Energy Star, LEED certification); provide for daylighting; minimize transportation movements; and recycle and/or control waste streams.”
In other words, a zoning amendment’s approval in New Haven hinges – in part – on a project’s dedication to green building and sustainable development practices.
After noting that “compliance with environmental regulations should be included as a condition of a city land use approval,” the Tagliarini court went on to observe that:
as far as energy conservation is concerned the building’s lights are on an activation system which turns them off when rooms are not in use. At night the south portion of the building will not be occupied and not have need of internal lighting because that area is devoted to administrative offices. In one of its submissions the applicant represented the following:
SOM sustainability goals: The University is seeking to achieve a LEED Gold certification for the new SOM building. To that end, considerable efforts have been made to reduce energy use. Measures include reducing energy consumption through the use of insulated glass, a large horizontal window shade on the south exposure, demand control ventilation sensors, high efficiency fan and pump motors, displacement ventilation, and radiant heating in certain areas. In addition, renewable energy technologies may be utilized, such as photovoltaic panels which will be installed on the roof. Preliminary examination has shown that the building may also meet the Energy Star rating requirements.
The court concluded its analysis of the project’s green features by holding that “[t]here would appear to be sufficient compliance with the environmental concerns of the Comprehensive Plan” and went on to uphold the zoning amendment in Yale’s favor.
It’s also worth noting that the record before the court included “several pages” of testimony from the final hearing before the Board in which a gentleman “believed the building already on the site was quite a fine architectural work and claimed Yale could not claim to be ‘green’ if the buildings already there were torn down. He also said the massiveness of the building made clear that it did not fit in with the neighborhood and it would overwhelm abutting property.”
As we continue to monitor emerging “LEEDigation,” it’s becoming clear that land use and other zoning proceedings are a primary focal point where LEED- and green building-related issues are becoming increasingly commonplace. Tagliarini joins In the Matter of Penelope McIver, Ontario Municipal Board Case No. PL100661 (Jan. 17, 2011) as recent opinions where green design has played a significant role in a written judicial opinion. There, though, the Ontario Muncipal Board rejected the applicants’ claim that their LEED project deserved a variance on the basis that it promoted environmental sustainability in the spirit of Toronto’s official zoning plan.
The citation is Tagliarini v. New Haven Board of Aldermen et al., 2011 WL 1288638 (Conn. Super., March 11, 2011). The plaintiff will not appeal the decision, and construction is moving forward.