NEW HAVEN – A lawsuit is the latest development in an East Rock resident’s quest to open a soft serve ice cream shop at 829 Orange Street.
After the Appeals Board approved a usage variance to allow Elena’s on Orange to open with more seats than is currently allowed and with potential alcohol service, Elena Grewel appeared on the right track with her plans.
But late last month, John and Mary Lou DiPaola filed a complaint in New Haven Supreme Court seeking to overturn the consent. According to the complaint, the DiPaola family owns a property adjacent to the site.
The legal challenge means that Grewal has to postpone some aspects of the project. She said she is going ahead but will open the business as a convenience store that serves ice cream.
Jim Perito, Grewal’s attorney, said this form is allowed because the previous business, Ayah-H, was a convenience store with a food service.
Debolas’ lawsuit says that BZA should not agree to the usage variance because Grewel allegedly did not provide “reliable evidence of the existence of the applicable Exceptional Hardship and the unique hardships which it and its property cause to support the requested usage discrepancies.”
The complaint says that serving ice cream and alcohol is not permitted under Section 31 of the city’s zoning regulations.
Much of Orange Street lies between Trumbull Street and College Woods in the RM-2 area, according to the city’s zoning map. RM-2 refers to a medium high density residential area.
Section 31 explains what types of businesses are permitted in such residential areas, but Grewal and her attorneys have argued that the regulation is outdated.
Shaving, shoe repair, baked goods, groceries, amenities, tobacco, news, liquor packing, laundry, or “medicine or cosmetics, with or without the occasional soda fountain or lunch table” are permitted.
Ice cream parlors do not list – nor are the restaurants and bars to be found in the neighbourhood.
Caffe Bravo is a block from 829 Orange St. and has a wine and beer list, according to its website.
John DePaola previously owned Café Bravo, but his attorney Stephen Bellis said Tuesday that his client no longer owns the Italian restaurant.
Bellis also said that the liquor service at Elena’s on Orange would be more inconvenient because Grewal suggested there were 20 outdoor seats where people could eat and drink, while the liquor service at Caffe Bravo was “in an enclosed building and was part of a restaurant.”
The population is in harmony
Bellis says some neighbors are concerned about the noise of people drinking late at night.
As a condition of usage variance, Elena’s on Orange can be opened until 10 p.m., said the BZA decision letter. For alcohol service, Grewal said it would need approvals beyond variance if it were to seek to serve wine.
Perito, Grewal’s attorney, said the beer and wine service is well organized, and restaurants that serve alcohol outdoors usually need some kind of enclosure.
When Grewal’s order was filed before the BZA earlier this year, New Haven Independent reported that some neighbors were concerned about serving beer and wine, while others supported the business model.
She added that Grewal polled 300 people about the business idea, and 120 respondents said they wanted wine.
Jesse Keane, who lives in two homes from a potential ice cream parlor and has two children, doesn’t accept the arguments against serving liquor.
“I don’t think they’ve made their case very good,” she said. “It’s not going to be a raucous party all night.”
Instead, I imagined local couples stopping by for a glass of wine.
Ken used to live in Portland, where kid-friendly bars were more popular, she said, noting that the experience gave her a different perspective.
“I love it,” she said of the Grewal project. “I don’t see any problems with that.”
Kane said that if offering beer and wine will improve revenue, she supports it.
And Ken’s kids are “excited about soft ice cream.”
Yuri Lazybnik, another neighbor, expressed some skepticism about combining a serving of alcohol and ice cream because the frozen dessert attracts children.
But he said he didn’t think concerns about the alcohol service were enough reasons to turn down the project. He would have preferred to have an ice cream parlor serving alcoholic beverages rather than not having an ice cream parlor at all.
Lazbenik said that when he visits his grandson, they can enjoy some frozen desserts.
But Beth Lyons, who lives near the potential store, said she is against serving beer and wine there because the ice cream shop is likely to attract school-aged children.
She said a lot of high school students also frequent the store ahead of Elena on Orange.
Lyons helped circulate a petition against allowing beer and wine to be served on site, she said. She said she had received 51 signatures from people who said “Ice cream is OK but not OK for beer and wine.”
Another nearby neighbor, who declined to be named, shared a similar view.
“I would say yes to ice cream, no to alcoholic drinks,” she said. “This is exactly near the high school. I am not sure that is a good idea.”
Get the variance of use
The distinctions allow business owners to pursue uses beyond those listed in Section 31.
“In the event of unreasonable difficulty or hardship in the manner in which the strict message of a zoning ordinance is carried out, the zoning appeals board shall have power in a particular case to alter the application of any provision of the ordinance, if such difference would be in keeping with the general purpose and intent of the law and if it would be Deliver public health, safety and welfare and achieve intrinsic justice,” says Section 63 of the zoning regulations.
Debolas’ lawsuit alleges that Grewal did not demonstrate hardship when she applied for a use variance.
“As a matter of difference, the courts are very particular in their application for legal difficulties,” Bellis said. “But (the applicant) cannot demonstrate that there is a legal difficulty.”
Although ice cream isn’t a permitted use, Bellis said, his customers are mostly interested in selling alcohol.
He said they were concerned that “the place might act as a bar, (because it is) a residential neighborhood.” “It can be loud and that’s not my type of setup.”
Grewal previously said serving beer and wine would help keep the business going through the winter.
Perito claimed that BZA can confer differences in use based on conditions as well as hardship. He described ice cream parlors, beer service and wine as logical extensions of existing permitted uses, which include pack stores.
Perito also argued that zoning regulations are outdated.
“You could have a pharmacy with a soda fountain counter,” Perito said. “Well, unfortunately those haven’t been around for 65 years.”
Other ways forward
Perito said that despite the lawsuit, Grewal is open to discussions with DiPaulas to find another way forward.
Bellis said the two sides are currently talking about a possible settlement in which Grewal will open its own ice cream shop but refrain from serving alcohol.
Meanwhile, Grewal is reformulating its immediate plans to fit into the framework of a convenience store with food service business.
“Currently, we are moving forward with renovations to design a small shop that will use ice cream as an accessory, and specialize in catering,” she wrote in an update email to neighbors.
In a statement to a reporter, Grewal said she was excited to open an ice cream parlor and work with DePaulas as “good neighbors.”
It also called for the zoning regulations to be updated.
“The zoning laws are outdated and need updating,” Grewal said. “The little things can disrupt a local business for months or years. This can really hurt people who don’t have the money to wait for it.”
In addition to Grewal, New Haven BZA and Tideways Properties LLC, which owns the property that Grewal hopes to set up shop, are named as defendants in the lawsuit.
Laura Brown, the city’s executive director of city planning, said she could not comment on the pending lawsuit.
Mark Bassett, a Tideways representative, said Grewal is professional and cautious. He said he hopes Elena will do well on Orange.
“(It has) been expressed by several neighbors that it would be a useful addition,” he said.