P&Z Seeks Clearer Legal Guidance after “Ambiguous” Opinion on 33 Danbury Rd. as Public Hearing Clock Winds Down

What started out as a seemingly routine procedural matter has morphed into a debate over whether Wilton’s Planning and Zoning Commission (P&Z) can exempt developers from complying with the town’s zoning regulations related to lot coverage, and commissioners are concerned about the precedent that could be set if it turns out that they do.

At its Oct. 13 meeting, P&Z requested that town counsel Pete Gelderman appear at its next meeting to clarify his written opinion on an application by developer CHEL Associates LLC.

At issue is whether P&Z has the authority to grant a variance that would allow CHEL to proceed with the renovation of the six-unit mixed-use commercial building at 33 Danbury Rd. despite plans that would increase the building’s total floor space to exceed what is allowed in the town’s zoning regulations — or whether the developer must seek a variance from the Zoning Board of Appeals (ZBA).

Commissioners closed the public hearing with the question unresolved, expressing concern about both their authority and the implications their interpretation could have for future applications.

CHEL wants to add an exterior elevator to the rear of the building, increasing its total floor area beyond what is allowed in the Design Retail Business District (DRB).

CHEL attorney John Hall argued that the proposal can account for this by including the square footage of a demolished building previously located on the site when calculating floor area ratio (FAR) — the ratio of a building’s floor space to the total size of the property. Hall maintained that the property is considered “nonconforming” with buildings that predate the current standards in the town’s zoning regulations. Therefore, he said, no variance would be required.

But P&Z commissioners aren’t so sure. Although Hall said Gelderman verbally agreed that the substitution approach was allowable, commissioners wanted Gelderman’s opinion in writing to eliminate any uncertainty. Unfortunately, counsel’s written opinion did not resolve their questions.

“If the Commission determines that any new structure must conform to FAR standards and coverage limitations, then the property owner must seek relief from the [Zoning Board of Appeals (ZBA)] or build a structure that complies with the Regulation or rebuild the structure in the exact same footprint (and in accordance with the same parameters) as the former nonconforming structure,” Gelderman’s opinion states.

But does P&Z have the authority to allow the proposed transfer of floor area in the first place? Gelderman’s opinion doesn’t explicitly say it does, and the commissioners were not convinced that they do — despite Hall’s argument that the opinion gave them the leeway.

“I don’t know what is in attorney Gelderman’s mind, or — to quote Shakespeare, ‘There’s no art to find the mind’s construction in the face,'” P&Z Chair Ken Hoffman said. “So, without the face, I don’t know how to interpret attorney Gelderman, so I’m stumped what to do in this particular case.”

Several commissioners expressed concern about the potential consequences for future land-use decisions if P&Z has the power to grant exemptions from conforming to the zoning regulations’ FAR and coverage standards. Commissioner Anthony Cenatiempo worried that, “if we have similar situations come up before us in the future like this … we have basically hamstrung ourselves to approve that” if so.

Adding to P&Z’s dilemma, the application has now reached the end of its 65-day window for a public hearing, with no possibility of extension. As a result, P&Z had to close the hearing and can no longer discuss the details of the application with CHEL — despite a number of other unresolved issues in addition to the FAR question.

“Are We the Right People?”

Hall said that Gelderman told him that the FAR “could be grandfathered in,” noting that he could not find any case law related to FAR in nonconforming structures.

“He doesn’t see any reason why it couldn’t be treated as a nonconforming FAR,” Hall told the commissioners. “And an argument could be made that … an existing non-conforming FAR could be transferred to another location on the lot. That’s what we’re asking for. … He’s not raising an issue as to whether or not this can be used. He’s just raising an issue as to whether or not the commission agrees with his analysis, I think.”

“Are we the right people to be kind of granting a variance here?” Commissioner Trevor Huffard asked.

“Well, we’re not looking for a variance,” Hall replied. “We’re just looking for the application of the previous nonconformity.”

Cenatiempo said that in his opinion, the “cleaner course of action” would be for CHEL to seek a variance from the Zoning Board of Appeals (ZBA). However, Hall balked at the suggestion.

“They would deny it,” Hall said. “They don’t give variances anymore.”

Instead, Hall said, he believed Gelderman’s opinion gave P&Z the authority to allow the proposal.

“I mean,” Hall said, “he kind of asked you guys for the legal opinion of whether or not you can do it or not, which is a little unfair …”

“I agree,” Cenatiempo interjected.

“… but he does say, you know, if this commission decides it can do it or it can’t do it, you know, so he’s kind of giving you the leeway, I think,” Hall concluded.

Hoffman summarized the impasse : “I have an interestingly worded opinion of counsel. I have a need by attorney Hall to press his case forward and a desire not to go in front of the ZBA. I feel I’m not qualified to make that interpretation … myself, and I’m hearing that other commissioners are feeling the same way.”

Parking Issues Remain Unaddressed

In addition to the question of whether P&Z has the authority to approve counting the demolished building’s square footage toward the elevator addition, a number of other sticking points remained unresolved at the Oct. 13 meeting.

One of them had to do with parking. Due to the small size of the lot, CHEL is requesting a waiver to allow 43 parking spaces rather than the 50 required by regulations to accommodate the shared residential and commercial uses. Furthermore, some of those parking spaces are within a designated floodway, which would require P&Z review.

Although the commissioners did not address that particular question during the Oct. 13 meeting, another parking-related issue did come up. Following the Sept. 14 P&Z meeting, Director of Planning and Land Use Management Michael Wrinn received an email from Leland Wilson, president of Wilson Properties, asking to “please make sure restaurant parking doesn’t end up in my parking lot where Dunkin is located.”

The Dunkin’ is located at 35 Danbury Rd., in the building next door to the north. The email surprised Hall, who said that CHEL has a “very good relationship with the neighbor,” and that in fact many Dunkin’ customers cut through the 33 Danbury Rd. lot to take advantage of the traffic signal at Kensett Ave.

At Hoffman’s suggestion, Hall said CHEL could install a sign instructing people not to park in the Dunkin’ lot, and added that Wilson could also post a similar sign warning his customers not to park in the 33 Danbury Rd. lot either.

Flood Management Plan Also Needed

The other unresolved issue is flood protection for the rear entrance and elevator. The building redesign proposes using removable flood gates to address that. However, a change to the Federal Emergency Management Agency (FEMA) flood zone boundaries on the property bringing them closer to the building, raised questions about whether that approach would be sufficient.

“There’s a whole host of things that have to be finalized on that whole flood issue,” Wrinn said. “We’ve got an elevator in a flood zone. We’re going to get a building that’s going to be flooded, which is fine, there’s a way to do it, but we just need to have that documentation.”

Wrinn said allowable flood mitigation methods will depend on who uses the ground-floor space. The zoning regulations do not permit residential applications, such as a storage space, on the ground floor, without a “whole program” of dry floodproofing, which CHEL had not yet provided.

“That would have to be a condition of approval,” Wrinn said.

One previously open issue was resolved. Although the architectural plans and site plan specify two restaurants, the application specified only one — as did the original public notice. However, CHEL subsequently updated the application to reflect two restaurants and the town re-advertised it accordingly.

What’s Next?

With the public hearing closed after a 45-minute discussion, P&Z can no longer discuss the application with Hall or with CHEL’s architect or engineer. However, the
commissioners are still able to speak with Gelderman, because he is considered town staff. P&Z now has 65 days within which to deliberate CHEL’s application and to vote whether to approve or reject it.

Commissioners requested further legal guidance from Gelderman before deciding how to proceed.

At the end of the hearing, Hoffman thanked Hall and CHEL’s architect Phillip Cerrone and civil engineer Dean Martin for attending.

“We appreciate it and we will reconvene,” Hoffman promised.

“Thank you very much,” Hall responded. “Respectfully, it’s a complex issue.”