WOODBRIDGE - The town's Zoning Board of Appeals has been served with a summons to appear in New Haven Superior Court, along with town residents Mary Jo and Roger Arpaia. The court action was initiated by Holly and Gerald Porter, also town residents.

The Porters filed with the court to appeal the Dec. 10 ZBA decision to allow the Arpaias to run a day care for 24 children in the Porters' residential neighborhood. The ZBA and the Arpaias are scheduled for a written "appearance" to the court on Jan. 29.

The property at issue, 10 Robert St., is located in a residentially-zoned area off of Litchfield Turnpike; the Porters' property abuts that address. Although the house has not functioned as a day care since 2002, Mary Joe and Roger Arpaia had expressed an interest in purchasing the property and applied for a permit to restart a day care for 27 children at that address.

The application was denied by the zoning enforcement officer, Terry Gilbertson, based on current zoning regulations. Those regulations stipulate that day care centers in residential areas are limited to facilities for a maximum of 12 children.

Gilbertson acknowledged that the address had been used as a day care for 27 children until 2001. According to zoning regulations, however, the right to continue a "nonconforming" use must be exercised within 240 days to be valid.

The Arpaias sought to overturn the denial via their attorney, Alan Tyma. Tyma pointed out that Connecticut State Statute 8.2, which trumps local regulations, mandates that a discontinuation of a nonconforming use cannot be based solely on elapsed time "without regard to the intent of the property owner to maintain that use."

The town attorney, James Perito, also directed the ZBA to "examine the element of intention."

With that directive in mind, the ZBA focused the hearing on the intention of the property owner. Sandy Elias, chairwoman of the ZBA, said at the hearing, "Essentially…this will be a determination by the Zoning Board of Appeals of fact as to whether the intention of the owner was to abandon that nonconforming use."

During the ZBA hearing, the current owner of 10 Robert St., Vidyasagar Lokhande, stated that he originally purchased the property in 2002 to run a day-care facility. He had intended to have his mother-in-law reside there and run the day care. Lokhande's mother-in-law fell ill in 2003, so those plans were never put into effect.

Despite that, Lokhande maintained that he still intended to run a day care from 10 Robert St. Since buying the property, Lokhande said that he had contacted the town twice to inquire about day-care regulations. Additionally, when Lokhande recently put his house up for sale, he marketed the property as zoned for a day-care facility.

Lokhande admitted to the ZBA that he had never filed any paper work to start a day care with the state or the municipality. Lokhande maintained that, although he had given up the idea of starting a day care on his own, he had not abandoned the use.

Tyma supported those claims, saying Lokhande took no overt action to abandon the day-care use. Tyma presented photos demonstrating that Lokhande left the day-care rooms and the electrical/safety features intact. Tyma said, "The property owner took no affirmative acts to abandon the use."

Some residents expressed skepticism about the owner's actual intent, pointing out that the mother-in-law did not speak English, nor did she have any day-care credentials. These residents also attested to the fact that the owner sold off all the furniture and associated equipment for the day care.

Michael Moher, the attorney representing the Porters, said, "The current owner has done nothing to maintain the property. For more than five years, there has never been any kind of action on behalf of the present owner to signify ongoing use. The nonconforming use was voiced only when it came time to sell the property."

In addition, Moher referred to Connecticut case law in which the court stressed that land use decisions must be informed with the "goal of zoning to reduce nonconforming to conforming uses with all the speed justice will tolerate."

At the conclusion of the hearing, the ZBA concurred that Lokhande's intentions were to continue the nonconforming use of the property and found in favor of the Arpaias. The ZBA did limit the number of children to 24, as mandated by a 1973 court decision.

Moher stated that the ZBA improperly interpreted the issue, leading to the Porters' request for an appeal of the decision. According to Connecticut State Statutes, ZBAs are compelled to consider "conserving public health, safety, convenience, welfare and property values of neighborhoods." Moher was concerned that a day care in the neighborhood would impinge on all these qualities.

The summons states that allowing a day care at 10 Robert St. "would adversely affect the character of the neighborhood, surrounding property values …,the comprehensive plan of the Town, increased and unsafe traffic, and the public health, welfare and safety."

Holly Porter said, "I think the decision was improper. I think a lot of things were not looked at. The board only considered the intention without taking into account other issues."

Those issues include:

A legal nonconforming use

In 1973, the Katzes petitioned the town to "lease the property (10 Robert St.) to a nonprofit organization for 24 students".

Although that request was originally turned down, the courts subsequently ruled that the family could run a non-profit day care for 24 children.

In 1990, the Ross family bought the property and continued the day-care use of the property. It is unclear if the day care continued to function in a nonprofit capacity.

Despite the fact that the initial request and the court order were for 24 children, the Katzes received a license to accommodate up to 27 children.

Impact on safety and welfare

Residents expressed concern about the impact of a day care on their neighborhood. Citing noise complaints and traffic woes, residents were opposed to the day care. Moher said, "There are legitimate concerns on the part of the neighbors about traffic and noise."

Tyma stated that there were no complaints lodged with the police against that address for noise. A number of residents spoke at the ZBA meeting in support of the day care, saying that noise and traffic had not been an issue with the previous day cares.

Additionally, the Arpaias had proposed a traffic flow plan to deal with the issue to minimize any inconvenience or congestion.

Residents were skeptical of the plan's effectiveness. Holly Porter said her office abuts a day care, and when that facility holds events, the office parking lot is overloaded. Porter said, "If there's a school party, you can't get out of the office parking lot."

Additionally, access to the neighborhood is via Litchfield Turnpike, a road with considerable congestion concerns already. Additionally, according to a report in the New Haven Register on July 28, 2006, that stretch of Litchfield Turnpike is one of the 10 most dangerous roads in the state.

Impact on property values and neighborhood character

Scott and Marilyn Rowland submitted a letter raising concerns about how the day care might affect local property values. According to that communication, the couple contacted a realtor about the issue, who informed the Rowlands that "a day-care center would decrease the overall value of (their) house."

The Klatzkins, residents living close to the area, expressed concern that a day care in the area would change the character of the neighborhood. They submitted a letter to the ZBA stating, "Neighbors' reasonable expectation of a residential neighborhood would be destroyed."

On the other hand, Michael Walter, a former neighbor, submitted correspondence in support of the day care. He commented that the current owner had let the property fall into such disrepair that it would be difficult to sell. With a paucity of buyers, Walter pushed for ZBA approval because the Arpaias were interested in buying the property and had promised to fix it up.

Proximity of other dacy care facilities

Zoning officials are directed to consider the proximity of other facilities providing similar uses. Residents questioned the need for this particular day care, since another day care for 42 children is under consideration at 1768 Litchfield Turnpike, an area already zoned for commercial nonresidential use.

The applicant, Kathleen Consoli, originally obtained a permit in October from the Town Plan and Zoning Commission for a day care to accommodate more than 80 children. Consoli had been promised a lease at 7 Research Drive, another commercial nonresidential use area.

That offer of a lease was withdrawn suddenly, just prior to the Dec. 10 ZBA meeting. The landlord of the withdrawn offer, Randy L. Harrison, would not comment on his decision. He said, "I'm not going to make any comment on a private business matter."

When the lease at 7 Research Drive fell through, Consoli was offered space at 1768 Litchfield Turnpike, but that offer was withdrawn, as well. Subsequently, that landlord expressed "a change of heart" and re-extended the offer, but only for 42 children. Consoli must resubmit her application to the TPZ, however, before she can proceed.

Perito said he had no specific comment about the legal case but stated, "The Zoning Board of Appeals took its normal action. The plaintiffs filed for an appeal to be certain the board ruled appropriately."