Berkshire Plaza—

Judge Overturns Retail/Office Center Approval

By Andrew Gorosko

A Danbury Superior Court judge has overturned the Planning and Zoning Commission’s (P&Z) October 2005 approval of Berkshire Plaza, a 14,580-square-foot retail/office complex proposed for a steep 2.35-acre site at 146-148 South Main Street.

In a recent decision, Judge Carl J. Schuman ruled that the P&Z erred on two counts last October 6, when it approved the commercial project sought by Monaco Properties, LLC, of New Haven.

The court appeal challenging the P&Z approval of Berkshire Plaza was filed by plaintiffs Christian H. Qualey, Jr, and Judith A. Qualey, both of 1 Cedar Circle. The P&Z and Monaco Properties were co-defendants.

Mr Qualey is one of the owners of 150 South Main Street, a commercial property abutting the development site. The Qualey property holds the businesses Phone Forum, LLC, and South Main Pizza. Mr Qualey this week declined comment on the legal victory.

Following lengthy review, last October 6, the P&Z approved Berkshire Plaza, granting the applicant a special permit 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.

In the court appeal, the plaintiffs charged that the P&Z acted illegally, arbitrarily, and in abuse of its discretion in approving the project. The plaintiffs alleged that the development application contained incorrect information. They also charged that proper public notice of the public hearing on the application was not provided. The plaintiffs further alleged that the application does not comply with applicable regulations. They also claimed 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.

In his decision, Judge Schuman found that the applicant’s failure to provide the Qualeys with a personal mailed notice of the August 4, 2005, P&Z public hearing on Berkshire Plaza, as is required by the P&Z’s regulations, invalidated the P&Z’s approval of the project.

The P&Z conducted public hearings on the project on August 4, September 1, and September 15, 2005.

Although notice of the August 4 hearing was published in a local newspaper, the applicant did not provide the required mailed notice of that session to the Qualeys, the judge found.

Christian Qualey, who received mailed notice of the September 1 hearing, appeared at that session and expressed concern that he did not know what had occurred at the August 4 hearing, the judge wrote. A summary of what had occurred at the August 4 hearing, which was provided to Mr Qualey at the September 1 hearing, was inadequate, the judge ruled.

Failure to receive mailed notice of the August 4 hearing deprived the plaintiffs of fundamental fairness, the judge decided.

Judge Schuman also found that the P&Z erred concerning the issue of the proposed development’s effect on nearby property values.

“Because the [P&Z] failed to indicate that it was relying on its own expertise concerning property values, the court will not conclude that it has done so…The [P&Z’s] conclusion regarding property values is not supported by substantial evidence or indeed any cognizable evidence,” the judge wrote in his decision.

In granting the special permit, P&Z members had implicitly agreed that the project would not substantially impair property values in the neighborhood, according to the judge.

Judge Schuman notes that Mr Qualey’s prime concerns about Berkshire Plaza appeared to focus on the project’s size, its effects on area traffic, and motorists’ sight lines.

An earlier version of Berkshire Plaza had proposed a 20,400-square-foot commercial building. The project’s eventual 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 located on a sweeping curve in the road.

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 a retaining wall, but its proposed commercial building never materialized.