Judge thwarts move to allow less commercial use at Walnut Beach condos

A Superior Court judge has overturned a regulation change that would have allowed Beach Shore Village condominiums to have fewer commercial units than were previously required.

Judge Arthur Hiller issued a Sept. 16 decision in which he wrote that the regulation change adopted by the Planning and Zoning Board at its Nov. 4, 2015. meeting was “vague and meaningless.”

At the Nov. 4, 2015, meeting, attorney Thomas Lynch proposed the change to the zoning regulations on behalf of the developer, Beach Village LLC, saying that there are problems with completing the project with the previously required 20% commercial component.

Lynch said banks do not give mortgages on commercial condominium units, there is a weak market for commercial space on lower Naugatuck Avenue, and one building is now located in the flood zone, requiring it to be placed on 12-foot-high piers, making it impractical to have a first-floor business.

The board changed the zoning regulations to state that instead of the 80% residential and 20% commercial required in mixed-use buildings in the CDD-2 zone, the board would determine the percentage of commercial and residential uses on a site. These regulations would affect only properties in the AE-12 flood zone, limiting the scope of the regulations to the Beach Shore Village property.

The Walnut Beach Association and 12 neighboring business and property owners filed an appeal of that change on Nov. 25, 2015.

The plaintiffs who opposed the regulation change felt that it was important to keep the street-level units commercial.

“In recent years, the area has undergone a renaissance of sorts with the addition of new stores and businesses, and the business community did not want to replace new commercial space with residential garages as was proposed,” said attorney Danielle Bercury, who represented the plaintiffs in the case. “Interestingly, the property historically had deed restrictions requiring commercial use, which is unusual but shows that having the commercial use in this area is significant.”

Resident and Walnut Beach businesswoman Susan Patrick said in the past that she opposed the zoning change because it compromised a long-standing vision to combine commercial and residential property on the site to make it work as part of the Walnut Beach art district.

“This [property] was 100% commercial when the community came together to approve the change and now it’s being completely altered,” Patrick said during previous discussions. “I get calls every month from people now wanting to rent in the area with no available commercial space, and they want to remove what we have left.”

In the appeal, attorneys representing the businesses and residents wrote that the proposed regulations were “unconstitutionally vague” because they lack standards and contain no standards for mixed-use developments in the CDD-2 zone not located in the AE-12 flood zone.

“The regulation amendment application as approved contains no standards by which the defendant board can determine what percentage of total gross floor area is devoted to residential use for properties in the AE-12 flood zone,” states the appeal.

Hiller agreed with the argument.

“This type of language is vague and meaningless, providing no guidelines and making the decision of the amount of residential use area an arbitrary one,” wrote Hiller in his three-page decision. “The lack of a fixed and meaningful standard renders the present amendment to the regulation arbitrary and is an abuse of the board’s discretion.”

Bercury said amendments to zoning regulations are rarely overturned, as the law believes the board is in the best position to write and amend the zoning regulations.

“In this case, however, the judge’s decision was issued the same day as the hearing,” Bercury said. “He quickly decided the regulation change, which basically left it up to the board to determine how much of a mixed-use development must be commercial, was unconstitutional. Neither the board, property owners or, in this case, an opposition group could tell what was or was not permitted under the new regulation.”

Beach Shore Village has filed a motion asking the judge to reconsider his ruling. Also, in a Sept. 19 email, Lynch wrote, “We will re-apply to the PZB for a regulation change to comply with the ruling. We are confident that we will ultimately prevail to finish the project with residential units, instead of commercial units.”

(Editor Jill Dion contributed to this article.)