Developer Appeals P&Z’s Rejection Of Walgreens Proposal

By Andrew Gorosko

A development firm has sued the Planning and Zoning Commission (P&Z) in Danbury Superior Court over the P&Z’s rejection of a change of zone, which the developer had sought for 47-49 South Main Street to build a large Walgreens Pharmacy on the prominent street corner.

In an administrative appeal filed on November 24, plaintiff Newtown Main, LLC, seeks to have a judge overturn the P&Z’s recent rejection the firm’s request to convert the zoning designation at the 1.45-acre site on the corner of South Main Street and Mile Hill Road from B-2 (Business) to SDD-3 (Special Development District #3).

SDD-3 zoning is an aspect of the P&Z’s SMVDD (South Main Village Design District) zoning rules, through which the agency seeks to closely control the appearance of new and renovated commercial architecture and landscaping along South Main Street to ensure that the area maintains a New England appearance.

On November 6, the P&Z had voted 3-to-2 to grant the change of zone requested by Newtown Main, and later published a legal notice in a newspaper formally announcing that change of zone.

However, P&Z members later realized that they had actually not approved the change of zone because the SMVDD zoning rules, which the P&Z approved in July 2007, require that such a change of zone to SDD-3 zoning requires a “super majority” 4-to-5 affirmative vote, not a “simple majority” 3-to-2 vote.

Consequently, the P&Z then published a second legal notice that cancelled the first legal notice and reversed its decision on the change of zone, in effect, rejecting the change of zone.

On learning of the P&Z’s reversal, Newtown Main developer Robin Eshaghpour of Queens, N.Y., expressed displeasure at the turn of events, vowing that he would get a Walgreens Pharmacy with drive-through window service built at the site. A 13,640-square-foot Walgreens is proposed for the property. Three buildings would need to be demolished to make way for the project.

It was questions about the presence of a drive-through window and concerns about the practicality of the site’s traffic design that caused two P&Z members to vote against the change of zone on November 6.

Court Appeal

Through the court appeal, Newtown Main seeks to have a judge reverse the P&Z’s rejection of the change of zone and, in effect, approve a change of zone for the project.

Asked to comment on the pending court appeal, P&Z Chairman Lilla Dean said, “Everybody has the right to appeal any decision that we [P&Z] make.”

In the lawsuit, the plaintiff states, “Newtown Main was informed that the P&Z’s action was not an approval with stipulations, but instead a denial, since the action was not granted by a four-fifths majority as required by the Newtown zoning regulations.”

In the legal papers, the developer states that all of the documents that it provided to the P&Z supported an approval for a change of zone.

The rejection of a change of zone diminishes the value of the site, according to the developer. The developer holds an option to purchase the property, where it would build the structure that it would lease to Walgreens for use as a pharmacy..

“The defendant P&Z acted illegally, arbitrarily, capriciously and in abuse of its discretion,” according to the lawsuit.

“The defendant P&Z’s action represents a vague and uncertain determination of the plaintiff’s applications…The action of the defendant P&Z violated Newtown Main’s right to due process of law in that the defendant failed to follow the zoning regulations and established law on the matter, and failed to provide Newtown Main with a proper public forum before it changed and rescinded its prior action,” according to the legal papers.

Walgreens has long sought to have a large pharmacy on the prominent street corner. A July 2005 proposal to build a Walgreens at the site, which was pursued by another developer, was unsuccessful. That proposal included a request for drive-through window service, which proved to be a stumbling block for the project.

The 47-49 South Main Street site has been occupied by a number of businesses over the years, including Newtown Oil Company, which went out of business in December 2002.

Newtown Main is represented by attorney Elizabeth Suchy. The town is represented by attorney Robert Fuller. The town has a January 13 court return date in the appeal.