Borough Office Building Rejection Draws Lawsuit

By Andrew Gorosko

The developer whose controversial proposal to build a 35,000-square-foot office building on the vacant corner of Church Hill Road and The Boulevard was rejected by the Borough Zoning Commission last month, has appealed that rejection in court, in seeking to have a judge approve office building construction.

In a lawsuit filed July 16 in Danbury Superior Court, Church Hill Partners, LLC, of 30 Germantown Road, Danbury, seeks to have a judge order the commission to approve the site development plan and approve the special exception to the borough zoning regulations, which Church Hill Partners had sought for the project. The court return date is September 2.

On June 30, Borough Zoning Commission members unanimously rejected the office building proposal. In an 18-page explanation of their action, commission members stated, “The proposal is too large and too intensive for the location.”

Church Hill Partners, LLC, had proposed a two-story office building, in what would have been the most intensive commercial development project in the borough since the mid-1990s redevelopment of Newtown Shopping Village on Queen Street.

Church Hill Partners had sought approval for office building construction on the southwestern section of a 4.4-acre site at 37 Church Hill Road, including an adjacent 154-space parking lot. The site is in a P-1 Professional zone. Church Hill Partners is under contract to buy the site from property owner Pepper Partners Limited Partnership of Bridgeport.

Boulevard-area residents strongly opposed the proposed office building at May and April public hearings. Their many objections focused on the additional traffic that would be generated by an office building in the heavily traveled area, the relatively large size of the office building, and the placement of the sole entry/exit driveway for the building on the residential Boulevard.

Lawsuit

In the court appeal, attorney Francis J. Collins, representing Church Hill Partners, states that at the public hearing on the proposal, the developer said the project “would not have any adverse effect on traffic or safety, and complied with the special exception standards set forth in…the Borough of Newtown zoning regulations.”

 The developer “has incurred substantial expenses in attempting to develop the property, and cannot make the highest and best use of [the] property without [the] special exception,” according to the appeal.

Church Hill Partners contends that the Borough Zoning Commission acted illegally, arbitrarily, and in abuse of its discretion because the office building application meets the requirements of the zoning regulations for both a special exception and for a site development plan.

The plaintiff states the commission “evidenced its pre-judgment of this application by its adoption of a regulation [change] limiting the size of buildings in this zone from 40,000 square feet per building to 6,500 square feet per building, during the processing of this application.”

Church Hill Partners applied for the office building last January 21. In late May, the commission approved revised commercial zoning regulations as a way to keep future commercial development in the borough in “aesthetic harmony” with existing architecture there. Provisions within those revised rules, known as the Village District regulations, limit commercial buildings to a maximum size of 6,500 square feet. The maximum allowable size had been 40,000 square feet.

On June 20, Pepper Partners Limited Partnership, which currently owns the site proposed for the office building, sued the Borough Zoning Commission over the Village District regulations. In that case, Pepper Partners opposes reducing the maximum allowable size of future offices and stores from 40,000 square feet to 6,500 square feet because it “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.” That lawsuit is pending.

Because its application for the 35,000-square-foot office building was submitted last January, Church Hill Partners’ application was not subject to the 6,500-square-foot Village District size limitation.

Last fall, Church Hill Partners submitted a preliminary proposal for a 39,260-square-foot office building for borough officials’ review. Last winter, after receiving comments from borough officials, the developer then submitted a revised formal proposal for a 35,000-square-foot building containing more architectural detailing than the original version.

In the July 16 lawsuit filed by Church Hill Partners, the developer contends that the commission failed to state proper reasons for denying the application. The commission improperly took into consideration matters that were not part of the record of the application, the appeal adds.

Church Hill Partners states that the commission “failed to acknowledge that the property is in a commercial zone, in characterizing the neighborhood as residential.”

The commission failed to give due consideration to the applicant’s traffic report, the plaintiff adds. The commission attempted to exceed its jurisdiction in citing other town ordinances and in citing potential noise as reasons for the application’s rejection, the lawsuit adds.

Also, the plaintiff contends that contrary to the commission’s claim, the applicant had addressed each of the various reasons that the commission had listed for the application’s denial.

Church Hill Partners maintains that there was no evidence to support the commission’s contention that the proposed development would have adverse off-site effects.

Reasons For Denial

When they rejected the office building proposal, Borough Zoning Commission members determined that, “The proposed [office building] use would tend to alter or undermine the residential character of The Boulevard neighborhood and beyond. The increase in traffic on The Boulevard would result, directly and indirectly, in a reduction in property values…The proposed use, because of its size and its [sole] access on The Boulevard, would tend to change the character of the neighborhood, and is not in keeping with it.”

Commission members added, “The traffic study submitted by the applicant has some serious ambiguities and flaws.” The traffic study does not consider a variety of issues that would substantially increase traffic volume in the already congested area in the future, according to the commission.

“Existing [traffic] difficulties at the [Church Hill Road/Boulevard] intersection are far more serious than the…report would suggest,” it adds.

“Traffic flow…is already at unacceptable levels…This proposal, with its size, density of use [at] this location, and having its [sole] access on The Boulevard, will indeed create additional traffic hazards on Church Hill Road and The Boulevard,” according to the borough zoners.

The commission also questioned whether mechanical equipment, which would be mounted atop the proposed office building, would be as quiet as was claimed by the applicant.

The large scale of the project would not be in harmony with the residential nature of The Boulevard and other buildings in the area, according to the commission.

Also, the proposal does not comply with the borough’s tree ordinance, with local road construction regulations, and with the provisions of public notice requirements concerning accurate descriptions of properties proposed for development, according to the borough zoners.

Also, the applicant did not provide sufficient information to substantiate that the proposed parking facilities would be adequate, the commission states.

In concluding, commission members decided that, “The proposal is too large and too intensive for the location. It does not satisfy conditions necessary to promote public safety, convenience, and property values.”