Black Swan—

P&Z Seeks Legal Advice On Flawed Zone Change Application

By Andrew Gorosko

Planning and Zoning Commission (P&Z) members are seeking legal advice from their attorney on how to handle an application for a change of zone on South Main Street, after discovering that the application is flawed.

In the application, the owners of three residentially zoned properties on South Main Street propose that their real estate receive a change of zone from R-1 (Residential) to B-1 (Business) to expand the business development potential of their holdings.

The affected properties are at 176, 180, and 182 South Main Street. The properties are on the west side of South Main Street, just south of its intersection with Orchard Hill Road and Huntingtown Road.

The formal applicants for the change of zone are Thomas and Carrie Swan, the owners of The Black Swan Stove Shop and The Black Swan Hearth & Gift Shop at 182 South Main Street, which is the southernmost of the three affected properties. The Black Swan sells stoves, fireplaces, grills, accessories, and spare parts, plus decorative items.

The Swans are seeking the change of zone as a way to allow them to expand their business at 182 South Main Street. If a change of zone is granted, the Swans would then seek P&Z approvals for an expansion project.

Mr Swan has said he wants to construct a larger, attractive new building on his property to replace existing facilities. He said he would construct a new building at the rear of property and then demolish the existing structure, which stands near South Main Street.

The property at 176 South Main Street, which is owned by Denise Douglas, holds a house. The property at 180 South Main Street, which is owned by Vincent Condon, holds a business known as A Sign Depot. Overall, the three properties comprise 3.6 acres.

At a March 17 P&Z session, P&Z Chairman William O’Neil pointed out that the existing zoning designation of the three properties is R-2 (Residential), not R-1 (Residential) as is stated in the application for a change of zone.

In June 1999, the P&Z expanded the town’s Aquifer Protection District (APD), and included those three properties in the district. Consequently, when the P&Z approved an “upzoning” project in September 2001 to increase zoning requirements for land in the APD as an environmental protection measure, it changed the zoning designation for that area from R-1 to R-2.

R-1 zoning is designated for single-family houses on lots of at least one acre. R-2 zoning allows single-family houses on lots of at least two acres.

The businesses that now exist on two of the three affected lots are nonconforming land uses, which precede the enactment of local zoning, and thus are allowed by the “grandfather clause” of the zoning regulations.

Noting the flaw in the Swan application for a change of zone, Mr O’Neil asked whether the P&Z should even consider the application. The P&Z held a public hearing on the application on February 3.

Mr O’Neil noted that an abutting property owner, who raised objections to the application at the February 3 hearing, is a lawyer and would notice that there is a flaw in the application.

Robert Hall, who is a land use lawyer, owns a house and land at 8 Huntingtown Road. Mr Hall told P&Z members February 3 that he fears that an expanded Black Swan would damage his enjoyment of his property.

The outdoor illumination to be used at an expanded Black Swan would result in excess light reaching his property in the nighttime, known as “light pollution,” Mr Hall then said.

Mr Swan has said that he would take steps to prevent illumination problems at the Hall property.

On March 17, Elizabeth Stocker, the town’s community development director, suggested that the Swans withdraw their application for a change of zone.

Attorney Ward Mazzucco, representing the Swans, said that the future potential business zoning of the property is a more important element of the application than the property’s current zoning designation. Mr Mazzucco declined to withdraw the application.

Mr Mazzucco asked P&Z members to comment on the merits of the proposed business zoning for the site.

Mr O’Neil expressed doubts about the application’s prospects.

P&Z member Lilla Dean said she favors granting a change of zone for the three properties, noting that two of three properties now have commercial uses.

P&Z member Sten Wilson noted that it is difficult to make a left turn from the property onto northbound South Main Street.

Taking stock of the five P&Z members’ sentiments on the application, Mr O’Neil said that he opposes it, three members favor it, and one member appears undecided. If a vote on the application had been taken on March 17, it probably would have been approved, he said.

But in view of the flaw in the application, Mr Fuller will review it before any possible P&Z action is taken, Mr O’Neil said.