A New Canaan woman on Wednesday filed a lawsuit against the Planning & Zoning Commission, saying the appointed body erred in denying her application to build a tennis court on her property.
According to the complaint filed in state Superior Court on behalf of Amy Tucci of 57 Rilling Ridge, P&Z’s denial during a July 26 special meeting was “illegal, unlawful, arbitrary and capricious.”
“The Defendant Commission ignored and acted in a manner that is inconsistent with and violates the procedural and substantive requirements and provisions of the Zoning Regulations, the Connecticut General Statutes and the common law of the State of Connecticut,” attorney Joel Green of Bridgeport-based Law Offices of Green and Gross, P.C. wrote in the complaint.
P&Z also “failed to make proper findings of fact and failed to identify sufficient or adequate reasons for its actions,” the complaint said. The application and proposed tennis court “fully comply with the requirements, standards and conditions necessary for the approval of the application pursuant to the Zoning Regulations,” it said.
The lawsuit seeks to overturn P&Z’s decision and to award legal costs and “such other and further relief as the Court may determine.”
The Commission’s decision to deny the application was itself a divided vote.
Tucci—who originally had filed an application to operate a boutique commercial gym at home (later withdrawn)—applied to P&Z for a Special Permit that would allow a tennis court to be located within a 150 feet of the street (see page 55 here), and for a second permit allowing for soil disturbance of more than 10,000 square feet of area in order to (page 149).
While some commissioners argued that P&Z has approved applications for similar Special Permits in the past and noted that the court is designed to be just 52-by-115 feet (versus a standard size of 60-by-120), others said it’s inappropriate to approve a tennis court in the front yard and found that the application didn’t meet all Special Permit criteria.
Specifically, the commissioners who voted against the application cited the following criteria (page 208 of the regulations): “The proposed use or activity shall have no adverse effect upon the neighboring area resulting from the use of signs, exposed artificial lights, colored lights of any nature, flashing lights, loudspeakers or other noisemaking devices.”
Commissioner John Engel said, “We approve Special Permits all the time and put tennis courts and swimming pools, but I dare you to tell me an example where we allowed either a swimming pool or a tennis court in the front yard. I don’t think we’ve done that unless it’s in the four-acre zone or six-acre zone or can’t be seen by any of the neighbors.” (Note: There is no “six-acre zone” in New Canaan.)
Yet other P&Z members responded that such recreational facilities have been approved for front yards on Old Studio Road and Skyview Lane.
Town Planner Sarah Carey, an advisor to P&Z, said during the group’s deliberations, “I think the key is if you choose to deny it, you’re going to need to rethink every single application going forward. If you’re going to bring the hammer down on this one, you’re going to need to be stricter going forward because it’s not necessarily consistent with what’s been done in the past.”
Engel and P&Z Commissioners Tom Benton, Paul Knag and Allen Swerdlowe voted to deny the application. P&Z Chair Dan Radman, Secretary Krista Neilson and Commissioner John Kriz voted against the denial.
Knag said, “It’s not really a tennis court. It’s a play court and it’s a hard court so if you play pickleball on a hard court, you’re going to be making noise all over the neighborhood. Or basketball, or other noise-making activities.”
Radman noted in response that the proposed court would be clay.
Neilson said that although Tucci’s use of the property has rankled some neighbors in the past, the application itself could still be approved.
“From my perspective, I think we have approved a lot of things like this in my time on the Commission,” Neilson said. “And I could be wrong about this, but I suspect if there were not a history between the neighbors and this property owner that this may not have been the issue that it was tonight. And that’s all speculation, which I guess is probably not worth anything. If you put all of the past history aside, this on its face to me is an approvable application.”
The tennis court does meet P&Z’s setbacks, Neilson noted.
“It’s very standard for us to consider whether we want to allow a tennis court, a pool or any other accessory structure with a recreational use within 150 feet of the road and we have done it regularly over time,” she said. “So really, what I see as our challenge here is: How do we allow something that we traditionally have allowed and balance that with the concerns the neighbors have brought up? And I think the biggest concern, although none of them really came out and said it tonight, is, ‘Is this a truthful application? Is this what we’re really going to get? Is this a bait-and-switch situation because we feel like that’s happened to us before?’ And the best way I can see to prevent that is to put the condition on the Special Permit if we were to approve it to say there can be no minor or major home-based businesses on this property.”
Kriz did put forward a motion to approve the application along those lines—with several conditions, including specifics about screening—but it was voted down 4-3.
Five neighbors attending the hearing spoke in opposition to the application, citing concerns about noise, lower property values, increased impervious surfaces and runoff.
Curt Townshend, who said he lives two doors down on Rilling Ridge, said, “On what basis does Ms. Tucci think she should be allowed to build a tennis court that is 45 feet from the street?”
“If the measurement was just under the 150-foot limit, I could understand requesting a Special Permit. But this is not even close to that distance. If she is allowed to build within 45 feet, precedent will be set, and what is the next distance someone will want? Pretty soon we could have tennis courts bordering the streets all over the town.”
He continued: “In addition, given Ms. Tucci’s past practice of misleading her neighbors, and refusing to follow town guidelines by operating a business for almost two years without a permit, we are concerned about other uses she has in mind for this project. Though the application is for a tennis court, we fear she may use it for pickleball, which is loud, or roller hockey, or even incorporating it into her business if ever approved. This will also increase the noise pollution associated with the court.”
Rucci noted that Tucci withdrew the major home occupation application “because she got so much neighborhood pushback.”
“There had been in the past complaints made on that application and she said, ‘I want to live here and don’t want my neighbors to hate me for being here.’ She was always moving that business to online.”
Tucci is now moving toward becoming an influencer online, Rucci said.
[Note: The applicant’s street number has been corrected.]