South Main Street—

Berkshire Plaza Approval Draws Second Court Appeal

By Andrew Gorosko

The owners of a South Main Street commercial building who are upset that the Planning and Zoning Commission (P&Z) has approved the construction of a new 14,580-square-foot retail/office complex next door to them, have again sued the P&Z and the project’s developer.

The plaintiffs charge that the P&Z legally erred when it recently approved the controversial commercial project known as Berkshire Plaza.

In an administrative appeal filed last week in Danbury Superior Court, Christian H. Qualey, Jr, and Judith A. Qualey, both of 1 Cedar Circle, Newtown, sued the P&Z and developer Monaco Properties Limited, LLC, of New Haven. Through the lawsuit, the Qualeys seek to have a judge nullify the P&Z’s November 2 approval of Berkshire Plaza.

It is the second time that the Qualeys have sued the P&Z and the developer over the P&Z’s approval of Berkshire Plaza.

Last June, a Danbury Superior Court judge overturned the P&Z’s October 2005 approval of Berkshire Plaza. In that decision, Judge Carl J. Schuman ruled that the P&Z erred on two counts when it approved the project.

In that decision on the Qualey’s initial court challenge, Judge Schuman found that the applicant’s failure to provide the Qualeys with a personal mailed notice of the August 4, 2005, P&Z public hearing on Berkshire Plaza, as is required by the P&Z’s regulations, invalidated the P&Z’s October 2005 approval of the project. Judge Schuman also found that the P&Z erred concerning the issue of the proposed development’s effect on nearby property values.

The Qualeys are owners of 150 South Main Street, a commercial property abutting the Monaco development site at 146-148 South Main Street. The Qualey property holds the businesses known as Phone Forum, LLC, and South Main Pizza.

As a result of the initial court case, Monaco reapplied to the P&Z for the commercial complex and received a second set of approvals for the project. On November 2, P&Z members decided that the Berkshire Plaza application is consistent with the standards and criteria required for a special permit in a B-2 Business zone.

Monaco proposes the construction of Berkshire Plaza on a steep, rugged 2.35-acre site on the west side of South Main Street (Route 25). The structure, which would be built on a slope, would contain retail space on a lower level and office space on an upper level. The building might house up to eight retail spaces and up to four office suites. About two-thirds of the space would be reserved for retail uses, with the remainder used for offices.

At two October P&Z public hearings on the second version of Berkshire Plaza, Mr Qualey raised many strong objections to the development application, charging that it is technically deficient in its design. Mr Qualey raised questions about the traffic, septic waste disposal, and stormwater control aspects of the project. He charged that the presence of Berkshire Plaza adjacent to his commercial property would pose traffic safety hazards for customers entering and leaving his commercial property.

Allegations

In the current lawsuit, the Qualeys allege that the P&Z acted illegally, arbitrarily, and in abuse of its discretion in approving the project.

The plaintiffs contend that: the application does not comply with applicable zoning regulations; the approval is not in harmony with the purpose and intent of the zoning regulations; the project is detrimental to public health, safety, and welfare; and that the P&Z’s construction approval ignored, and is not supported by, substantial evidence in the record of the public hearings on the application.

The defendants have a December 26 court return date in the case.

As part of the P&Z’s most recent Berkshire Plaza approval, the state Department of Transportation (DOT) had required that Monaco cover the costs to widen South Main Street near the site. Such a road widening would allow northbound motorists to safely wait for southbound traffic to clear before they would turn left into the Berkshire Plaza driveway. Other northbound motorists would pass the waiting northbound motorists on the right without stopping.

Gian-Santa Associates received town approvals in 1989 and 1992 to commercially develop the site under a plan similar to the Berkshire Plaza project. Gian-Santa performed some site work on the land, including grading and the construction of a foundation and a retaining wall, but its proposed commercial building never materialized. Monaco later purchased the site.