Berkshire Plaza—

Retail/Office Complex Approval Challenged In Court

By Andrew Gorosko

The Planning and Zoning Commission’s (P&Z) approval of a 14,580-square-foot retail/office complex proposed for South Main Street has drawn a court appeal, which seeks to overturn that approval.

In a lawsuit filed October 26 in Danbury Superior Court, plaintiffs Christian H. Qualey, Jr, and Judith A. Qualey, both of 1 Cedar Circle, challenge the P&Z’s October 6 approval of Berkshire Plaza for a steep 2.35-acre site at 146-148 South Main Street.

The developer, Monaco Properties, LLC, of New Haven, is named as a codefendant in the case by the Qualeys. The court return date in the case is December 20.

Following lengthy review, on October 6, the P&Z approved Berkshire Plaza, granting the applicant a special exception to the zoning regulations to build the complex. The hilly site is on the west side of South Main Street. The property is in a B-2 (Business) zone, across South Main Street from Newtown Self Storage. The proposed 2½-story commercial building is intended for up to eight retail tenants and four office tenants.

The P&Z received an application for the project from Monaco last June 15. It then held public hearings on the application.

According to the court appeal, “The plaintiffs own property that abuts and is within one hundred feet of the property involved…and are therefore statutorily aggrieved by said decision.”

The plaintiffs charge that the P&Z acted illegally, arbitrarily, and in abuse of its discretion in approving the project.

The plaintiffs allege that the development application contains incorrect information. They also charge that the P&Z failed to provide proper public notice of the public hearing on the application. The plaintiffs further allege that the application does not comply with applicable regulations. They also claim that the approval is not in harmony with the purposes and intent of the zoning regulations and is detrimental to the public health, safety, and welfare.

The Qualeys also allege that the approval is not supported by the weight of evidence in the record of the application.

Through the lawsuit, the plaintiffs seek to have a judge overturn the P&Z’s approval of Berkshire Plaza.

On October 6, in approving the project, the P&Z required that before Monaco receives a building permit from the town, it must submit its architectural plans to the town Design Advisory Board for review and recommendations. The P&Z is seeking to have the building’s design, materials, and decorative elements be consistent with New England vernacular architecture.

The applicant had received zoning variances from the Zoning Board of Appeals for the project’s design concerning parking and landscaping.

An earlier version of the project called for a 20,400-square-foot commercial building. The project’s size reduction to 14,580 square feet allowed the complex to meet applicable vehicle parking requirements.

Developing the hilly site would require earthen cutting and filling to create a usable area. A section of South Main Street near the property would be widened to enhance traffic flow. The site is on a curve in the road.

At a past P&Z public hearing on an earlier version of the project, some nearby residents had expressed concerns that such development could pose additional traffic hazards along an already hazardous section of South Main Street.

Monaco purchased the site from Gian-Santa Associates. Gian-Santa received town approvals in 1989 and 1992 to commercially develop the property under a plan similar to one proposed by Monaco. Gian-Santa performed some site work on the land, including grading and the construction of a foundation and retaining wall, but its proposed commercial building never materialized.