P&Z: ‘No’ On Exception to Allow Exterior Elevator and Stairwell at 33 Danbury Rd., ‘Yes’ on Two Other Projects

Wilton’s Planning and Zoning Commission (P&Z) opposed a request by developer CHEL Associates LLC for an exterior elevator and stairwell as part of proposed renovations of the commercial building at 33 Danbury Rd., rejecting the developer’s argument that the square footage of a demolished house on the property could be used to accommodate the addition.

P&Z commissioners signaled they would be willing to approve CHEL’s proposal minus the exterior addition during their Oct. 26 meeting, which also saw them approve two other applications for commercial redevelopments along Danbury Rd. Planning staff will prepare a draft resolution for their Nov. 9 meeting.

At issue was whether the developer could “transfer” the square footage of the demolished house — which the town had ordered torn down under a blight lien — to the existing building for the purposes of calculating the property’s floor area ratio (FAR), or the ratio of the building’s floor space to the property’s total size.

Several commissioners warned that allowing CHEL’s request would set a precedent allowing developers to use buildings that no longer exist to bypass current zoning regulations and justify new construction.

Adding the exterior elevator and stairwell would increase the total floor area beyond what is allowed in the Design Retail Business District (DRB), but CHEL attorney John Hall argued that because the property was already nonconforming — that is, the buildings predate the town’s current zoning standards — the exception should be allowed.

“If they were to redesign their project so that there was an interior elevator as opposed to an exterior elevator, so it fit the format of what they currently have … my understanding is that would fit within our current regulations, right?” P&Z Chair Ken Hoffman asked.

“Sure, it’s an FAR issue,” Director of Planning and Land Use Management Michael Wrinn replied. “If we get rid of that stair tower, and that needed FAR goes into the building, that issue disappears.”

Counsel’s Testimony Opposes Applicant’s Interpretation

P&Z’s opposition to CHEL’s request followed the an appearance by Town Counsel Pete Gelderman, who attended the meeting to clarify the language in his written legal opinion on the matter.

Commissioners felt that Gelderman’s written opinion, which they discussed at their last meeting on Oct. 13, did not clarify whether P&Z had the authority to allow the floor area from the demolished building to be transferred to the building being renovated. In person, Gelderman said that, in his opinion, P&Z did not.

“What I was trying to do in the memo was tell you there’s at least an argument that can be made that floor area ratio is different [from coverage, which cannot be moved],” Gelderman said. “Ultimately, my conclusion is it’s not. But I wanted to at least give the commission some additional information in the event that that’s what the commission wanted to do.”

During the Oct. 13 public hearing on the application, Hall told commissioners that he had spoken with Gelderman about the written opinion and that Gelderman “doesn’t see any reason why it couldn’t be treated as a nonconforming FAR” and that “an argument could be made that … an existing nonconforming FAR could be transferred to another location on the lot.”

“The mere fact that this applicant went to the [Zoning Board of Appeals] first tells me that they thought it needed a variance, and it wasn’t a valid transfer of the FAR,” Gelderman said during his Oct. 26 testimony. “I mean, why would they have done that if they thought they had some kind of a right to resurrect it, I’ll say, in a new structure?”

“One of the sentences that I wrote in my memo that’s actually very important is that the law favors the discontinuance of nonconformities,” Gelderman said. “It favors getting rid of nonconformities. It favors getting properties into compliance with zoning.”

Gelderman noted that some towns in Connecticut do allow nonconforming structures to be demolished and rebuilt elsewhere on the same parcel, but Wilton’s zoning regulations prohibit that.

Although the regulations do not specifically address demolishing a building and then applying its square footage to another building, Gelderman said he did not think that should be allowed either — unless P&Z wanted to make an exception for it. The commissioners were unanimous that they did not.

“I think we would be setting a really tough precedent for future planning and zoning commissions and a lot of work for our planning and zoning department to figure out what’s reasonable, what was abandoned, was the floor area ratio at the time,” Commissioner Anthony Cenatiempo said. “It’s something we certainly can address in future revisions or regulations, but I think the prudent practice would be to say that … though the applicant wants to be creative, it just doesn’t work here.”

“I think it’s a bad thing to approve because … how far back do you look for buildings that might’ve been torn down but not abandoned?” Commissioner Trevor Huffard said. “It seems like you’re playing the shell game. So, I don’t think it should be magically movable.”

Hoffman said that he was initially going to propose a resolution denying the application. After discussing the matter with the commissioners, however, he said he would entertain an approval resolution that excluded the exterior elevator and stairwell.

That would require CHEL to either place them within the existing building footprint — necessitating a new interior design — or abandon the proposed conversion of the second floor into residential units for now and return to P&Z later with a separate application for that phase.

Wrinn said his staff would prepare a draft resolution for P&Z to review at its next meeting on Nov. 9. The resolution would also approve the proposed use of two ground floor spaces for use as restaurants.

“As long as they’re good restaurants,” Hoffman joked.

Unanimous Approvals for New Retail Building, Used Car Dealership Conversion

During its Oct. 26 meeting, P&Z also unanimously approved two other applications for redevelopment at either end of the Danbury Rd. corridor. Unlike the 33 Danbury Rd. application, both sailed through with no stipulations.

At the southern end of town, the former Palace Rugs building at 11 Danbury Rd. will be torn down to its foundation and rebuilt as a one-story building with vaulted cathedral ceilings housing two retail spaces with associated office space. The building’s design will emulate the adjacent building at 19 Danbury Rd., which shares the same owner.

“This is actually an exciting project,” Wrinn said, noting that both the Architectural Review Board (ARB) and the Inland Wetlands Commission (IWC) have reviewed the proposed development “and both of them were very positive about it.”

Attorney Liz Suchy, representing applicant 11 Danbury Rd. LLC, explained that construction equipment will be staged in the front parking lot to minimize potential impact on the wetlands adjacent to the Norwalk River, which runs behind the property. Work on the rear of the building will be performed by hand using ladders.

Engineer Harry Rocheville added that flood control on the site will be significantly improved through the installation of flood vents in the foundation, a catch basin in the front and riprap splash pads in the rear.

“I think it’s … obviously a big improvement on what’s already there,” Commissioner Jessica Rainey said.

“I agree, this is desperately needed and I look forward to improving it,” Cenatiempo said.

Because the applicant did not seek a special permit, a public hearing was not required before P&Z could deliberate and vote to approve the application.

Near the northern end of town, a proposed conversion of a former used-car dealership into a vehicle storage yard for use by James Ferrone Landscaping, Inc. also received unanimous approval after a presentation by the applicant and brief public hearing.

James Ferrone and his wife Lisa plan to relocate their business from Westport to Wilton, They will use the dealership’s vehicle bays to store his firm’s trucks and trailer, and install a screening fence around the rear of the property to store an excavator, skid-steer loader and other gardening tools and equipment.

No structural changes to the building are planned, and the parking lot will be upgraded with new parking space stripes.

Ferrone’s attorney Frank Lieto emphasized that, while most operations will be confined to normal business hours, emergencies such as the removal of snow, ice and fallen tree branches would require off-hours access to the site. The commissioners said they saw no concerns with that, noting that such access was permitted within the General Business (GB) zone.

During the public hearing, Wilton resident Patti Frisch asked whether there would be any draining of pesticides or other chemicals on the site as part of vehicle cleaning.

Ferrone and Lieto said the company would not store any hazardous chemicals on-site. They explained that the company fills its sole sprayer truck with only enough chemicals for a particular job so that the truck returns empty at the end of the day, after being flushed with water at the customer’s site as part of the last chemical application of the day.

“We’re certainly excited, on behalf of James and Lisa, to join the Wilton community with a very longstanding successful business relationship with the local town,” Lieto said.