The owner of commercial real estate at 111 South Main Street, which is near the 116 South Main Street site proposed for the construction of a Tractor Supply Company store, has filed a court appeal challenging and seeking to reverse the Planning and Zoning Commission’s (P&Z) controversial decision earlier this month to change the zoning designation of 116 South Main Street from R-1 (Residential) to South Main Village Design District/Special Design District-4 (SMVDD/SDD-4).

In a lawsuit dated November 17, 111 South Main Street, LLC, of Stratford names as defendants in the civil action the P&Z, NERP Holding and Acquisitions Company, LLC, and 116 South Main Street owners Nicole Buxton of Newtown and John Mead of Bowersville, Ga. The defendants have a January 12 court return date in Danbury Superior Court.

The one-acre property at 111 South Main Street is the site of a building containing Fair Auto Supply and Newtown Florist.

The court appeal has been sent to the town attorney for review.

After lengthy review, on November 5, P&Z members approved a change of zone for an eight-acre site at 116 South Main Street, thus allowing NERP to formulate a development proposal for a Tractor Supply Co. store there.

Based on paperwork submitted to the Newtown Land Use Agency by NERP, that firm is seeking to build and own a 19,000- to 20,000-square-foot store, which it would rent to Tractor Supply. The store would have an adjacent outdoor fenced display area of up to 20,000 square feet.

Having received the change of zone, NERP would now need a wetlands/watercourses protection permit from the Inland Wetlands Commission (IWC), when considering that the western section of the parcel has extensive wetlands.

Also, NERP would need a special permit for the project from the P&Z under the terms of the applicable SMVDD and SDD-4 zoning rules.

The development proposal has drawn criticism from some nearby property owners who charge that the proposed commercial use is not in keeping with the residential zoning in effect on the west side of South Main Street in that vicinity.

Tractor Supply, which is a major retail chain, typically sells merchandise including home improvement goods, livestock/pet-related products, hardware, tools, lawn-and-garden maintenance items, clothing, footwear, and automotive items, among other merchandise. The firm describes itself as an “agricultural retailer.”

Allegations.

In the court appeal, the plaintiff charges that the P&Z acted illegally, arbitrarily, and in abuse of its discretion in approving the change of zone for the Tractor Supply project.

The plaintiff alleges:

*The change of zone amounts to “spot zoning,” in which a small piece of land has its zoning designation changed to the detriment of the tenor of the surrounding neighborhood.

*The change of zone is contrary to the 2014 Plan of Conservation and Development and to the zoning regulations.

*The P&Z “impermissibly varied [the] zoning regulations.”

*Substantial evidence does not support the change of zone.

*The application for a change of zone did not conform to the zoning regulations and state law.

*The P&Z did not have the authority to hear or to grant the application.

The plaintiff is represented by attorney Michael Jankovsky of Q&R Associates, LLC, of Fairfield.

At a public hearing on November 5 that preceded the P&Z’s approving a change of zone for 116 South Main Street, some residents spoke in favor of having a Tractor Supply store at 116 South Main Street, saying it would be a good addition to the local business community.

Other people, especially those who own real estate nearby, however, objected, listing quality-of-life issues and property value issues as their concerns.

Attorney Christopher Russo, representing 111 South Main Street, LLC, on November 5 charged that an existing circa 1810 house at 116 South Main Street should be preserved, not demolished, as would be necessary to build the Tractor Supply store at site.

In their vote to grant a change of zone, P&Z members unanimously agreed that such a change of zone is consistent with the town plan. The P&Z approval includes a set of customized zoning regulations that would exclusively apply to the proposed development.

The P&Z created SMVDD zoning in 2007 in seeking to preserve the New England character of the 4.2-mile-long South Main Street corridor. Projects that have been created under SMVDD zoning include LMT Communications at 84 South Main Street, Highland Plaza at 123 South Main Street, and Walgreens Pharmacy at 49 South Main Street.