Borough Village District Zoning Draws Three Lawsuits

By Andrew Gorosko

Claiming that the borough’s new Village District zoning regulations are vague, would damage development potential, and hurt property values, borough commercial property owners have filed three lawsuits against the Borough Zoning Commission challenging the Village District zoning rules.

In late May, the commission approved the new zoning regulations as a way to keep future commercial development in the borough in “aesthetic harmony” with existing architecture.

The new zoning regulations are intended to preserve the appearance of areas in the borough with “business” and “professional” zoning designations. The intent of the rules is to “protect the distinctive character, landscape, and historic values” of the area by placing various restrictions and controls on commercial development.

Areas covered by the Village District overlay zone include properties with “business” and “professional” zoning designations along both sides of Church Hill Road between the Housatonic Railroad overpass and Wendover Road; areas with “business” zoning along both sides of Queen Street between its intersection with Church Hill Road and the traffic signal at the main entrance to Newtown Shopping Village; and the several individual properties with “business” zoning lying along the west side of Main Street between Newtown General Store and the intersection of Main Street and Sugar Street.

One of the lawsuits is jointly filed against the commission by Pepper Partners Limited Partnership and CPCI, LLC, both of Bridgeport. Another lawsuit is filed by Eton Centers, LLC, of New York City. A third lawsuit is filed by Robert H. Hall of Newtown.

All three appeals were filed June 20 in Danbury Superior Court.

Pepper Partners owns a 1.15-acre parcel of vacant land at 14 Church Hill Road, which formerly held the Oberg gasoline filling station. Pepper Partners also owns an adjacent 1.01-acre vacant parcel at 18 Church Hill Road, which formerly held the White Birch Inn. Both properties have “business” zoning.

Pepper Partners also owns a 3.97-acre vacant parcel with “professional” zoning at 37 Church Hill Road, which is at the corner of Church Hill Road and The Boulevard. A developer has proposed building a 35,000-square-foot office building there, but the Borough Zoning Commission rejected that application on June 30. (See related story.)

CPCI, LLC, owns a 3.27-acre parcel at 47 Church Hill Road with both “business” and “professional” zoning, which holds the Gas Stop gasoline filling station.

In the lawsuit filed by Pepper Partners and CPCI, the plaintiffs object to zoning regulation changes that reduce the maximum allowable size of future offices and stores from 40,000 square feet to 6,500 square feet. They also object to a rule change that prohibits the use of buildings in “business” zones by professional businesses, professional persons, real estate brokers, and stock broker/dealers.

The regulatory changes of Village District zoning “will drastically reduce the ability of owners of land in the business and professional zones to develop their properties, and will significantly reduce the value of those properties,” according to the court appeal.

The lawsuit contends that many provisions of the Village District regulations exceed the Borough Zoning Commission’s authority granted under state law.

The plaintiffs hold that there are certain technical flaws in the commission’s creation of the Village District, claiming that the areas for which the zoning regulations have changed are not of “distinctive, character, landscape or historic values,” as is required by state law for the formation of such a Village District.

The plaintiffs add that the Village District is not specifically identified in the 1993 Town Plan of Conservation and Development, as required by state law. The plaintiffs add that the Village District regulations do not apply to the many residentially zoned properties abutting or near the “business” and “professional” zones.

The plaintiffs also question the regulation of views involving areas outside the Village District.

Also, the plaintiffs claim that the standards and criteria in the regulations are “impermissibly vague” and do not contain criteria from which property owners and the commission could reasonably determine what is architecturally permitted within the district.

The plaintiffs also object because the regulations do not provide an application process for Village District zoning applications; do not impose time limits for commission action on applications; and do not require a public hearing on applications.

Broadly, the plaintiffs maintain that the regulations “will drastically reduce the value and development potential of the properties.”

Through the lawsuit, the plaintiffs seek to have a judge nullify the Village District regulations. Attorney Charles Campbell, Jr, of Stamford represents the plaintiffs. The lawsuit has an August 5 court return date.

 

Eton Centers

Eton Centers, LLC, owns a 7.55-acre shopping center on Queen Street in the borough that contains a 47,700-square-foot building that currently houses a pharmacy and a bank. The building formerly contained a Grand Union supermarket. Eton Centers also owns a .69-acre strip of land extending from the shopping center northward to Church Hill Road.

The plaintiff claims that the 1993 town plan does not specifically list the area affected by Village District zoning, as required by state law. Also, the commission does not have the authority to create Village District zoning for some zones in the area but not for other zones, the suit adds.

The commission’s prohibition against future professional offices in areas with “business” zoning is unreasonable, according to the plaintiff.

Eton Centers also objects to limiting new commercial buildings to a maximum size of 6,500 square feet.

 The plaintiff charges that the regulations are vague and do not provide criteria for determining what types of uses would be allowed at the shopping center.

Eton Centers seeks to have a judge sustain its appeal. Attorney Robert Hall of Newtown represents the firm. The lawsuit has a July 22 court return date.

Newtown General Store

Mr Hall, who owns the Newtown General Store property at 43 Main Street, also is appealing the Village District regulations. That building contains a general store and delicatessen, plus Mr Hall’s law office. It is in a “business” zone. Attorney Michael Nahoum represents Mr Hall in that lawsuit. The case has a July 22 court return date.

In the lawsuit, the plaintiff states that his property is not included in the “Village Center,” as described in the 1993 town plan, and questions why his property is affected by Village District zoning.

Village District zoning is “illegal, arbitrary, and an abuse of discretion,” the lawsuit states.

The plaintiff questions the regulatory value of imposing Village District zoning on the relatively small Newtown General Store property. Also, the plaintiff questions the Village District’s prohibition on future professional offices in “business” zones.

The Newtown General Store lawsuit raises some of the same issues raised in the Eton Centers lawsuit. Mr Hall seeks to have a judge sustain the general store appeal.

In response to the three court appeals, Borough Attorney Donald Mitchell, who represents the Borough Zoning Commission, said, “It’s not surprising [that] when you create new kinds of zoning, that somebody tests it.”

Mr Mitchell said, “Zoning, by its nature, restricts the options of property owners.” Zoning is intended for the good of the community, he added.

Aesthetic Zoning

A 1998 state law allows zoning commissions to create specialized zoning districts, in which the aesthetic aspect of areas that are visible from public roads may be controlled through zoning regulations, plus a series of design guidelines, pertaining to new construction, to substantial reconstruction, and to rehabilitation of properties.

Village District zoning provides some of the visual controls that are in place within designated historic districts. The intent of the Village District design guidelines is selectivity, and occasional restrictiveness, “to exclude designs that would erode the historic, cultural, and economic resource built up over generations,” according to the borough zoners.

The revised regulations’ intent is to have new buildings and additions to existing buildings be visually compatible with the district in terms of size, scale, building materials, and site planning. Through the rules, the commission seeks to limit building sizes to preserve the architectural scale of the area.

Through the Village District regulations, the commission requires that new buildings and modifications to existing buildings be constructed with appropriate materials and that construction designs be appropriate for a scenic and rural town in New England, observing appropriate architectural scale, rhythm, and proportion, and also avoiding monolithic forms.

Broadly, the regulations call for the architectural scale, proportions, massing, and detailing of proposed new construction to be in visual harmony with existing architecture.