A judge this month ruled against the town in its decision to uphold the issuance of a zoning permit for an interior renovation of a former residential dwelling at Grace Farms.
Neighbors of the Lukes Wood Road organization in July 2019 appealed the town zoning enforcement officer’s decision to issue the permit, saying, in part, that the Planning & Zoning Commission should have been consulted—or even designated as the deciding body—as to whether the work amounted to a disallowed, more intense use of the “Operations Center” at Grace Farms.
If so, that could amount to a violation of the organization’s existing special permit, according to neighbors David Markatos and Jennifer Holme, represented in the legal matter by attorney Amy Souchuns of Stamford-based Hurwitz Sagarin Slossberg & Knuff LLC.
Yet the Zoning Board of Appeals—without specifying why—denied their appeal by a 4-1 vote at its November 2019 meeting, prompting the neighbors to sue the ZBA the same month.
On May 10, after about 18 months of litigation, Judge Marshall Berger of the state Superior Court in Hartford ruled against the ZBA (and Grace Farms Foundation, which joined the suit as a defendant after filing a motion to intervene in January 2020).
In a 15-page decision that is at times strongly worded, Berger noted that the ZBA’s role “was limited and it was up to the [Planning & Zoning] commission to decide if the construction constituted a violation” (his italics).
“Under that reasoning, after all the time the board devoted to this issue and the time and expense of this appeal, should this court dismiss the appeal, the [P&Z] commission might thereafter decide that the construction did indeed constitute a violation of the special permit thereby promoting a new enforcement action. And the cycle begins again. Our volunteer commissioners deserve better. Perhaps statutory amendments should be considered to resolve such confusion and reduce the amount of unnecessary litigation.”
It’s unclear how much money the town has spent in legal fees on the matter. A summary sheet of legal expenses included in an invoice from the town attorney’s firm that the Board of Selectmen approved earlier this month doesn’t list the lawsuit among its line items. Land use- and zoning-related items have run up to tens of thousands of dollars in legal fees in the past.
The town was represented by attorney Pete Gelderman of Westport-based Berchem Moses PC, Grace Farms by Diana Neeves and Ted O’Hanlan of Stamford-based Robinson + Cole.
The plaintiffs’ argument focused on a condition of P&Z’s special permit approval for Grace Farms that says “there shall be no material change of the approved use or intensification of any use unless specifically authorized herein.”
Grace Farms applied in March 2018 for a building permit that would allow them to convert a garage space at the Operations Center building and increase the number of offices there from the original two in the 2017 permit to at least nine.
“Moreover, with the new construction, the center could accommodate twenty-three employees, up from five employees in 2016,” Berger wrote in his decision.
“The plaintiffs argue that in denying their appeal the board ignored the commission’s specific conditions listed in the 2017 permit,” the judge said. “The plaintiffs assert that either the zoning enforcement officer should have consulted with the commission to obtain its approval or that Grace Farms should have gone to the commission for a determination as to whether the proposed construction complied with the conditions of the 2017 permit. Indeed, the plaintiffs requested such relief from the board. This request is underscored by the fact that the board failed to state its collective reasons for its denial of the plaintiff’s appeal as required” by state law.
Meanwhile, the defendants in the lawsuit—the town/ZBA and Grace Farms—argued that the subject permit “only concerned certain interior improvements and nothing else and, therefore, referral to or approval by the commission was unnecessary and not required.”
“At least one board member stressed that the 2017 special permit authorized the use of the building for administrative purposes without limiting the number of employees and that Grace Farms was operating within those confines,” Berger wrote. “Hence, the defendants assert that the increases in offices and employees do not violate the condition of the 2017 permit. Additionally, the defendants argue that the plaintiffs are using this appeal as an enforcement tool, but are bound by the board’s determination having appealed the permit to the board.”
The ZBA at its Nov. 4, 2019 meeting voted 4-1 to uphold the decision of the issuance of a zoning permit, denying the appeal of the zoning permit. ZBA Chair Laura Edmonds, Secretary John Mahoney and members Ben Bilus and Becky Walsh voted in favor of a motion to uphold. ZBA member Luke Tashjian voted against.
Berger noted in his decision that “the board does not appear to have made a determination as it provided no collective statement for its denial of the appeal.”
“The record reflects that board member John Mahoney commented that he did not feel the intensification condition applied to this building, but rather to the overall Grace Farms project. Another board member, Luke Tashjian, recognized the issue and stated that he believed that intensification applied to the subject construction only to the extent the number of people were performing functions unrelated to the property itself.”