The Walnut Beach Association and 12 neighboring business and property owners have filed an appeal of a recent zoning regulation change designed to allow Beach Shore Village condominiums to shift the purpose of some unbuilt units from commercial to residential.

The association filed the appeal in Superior Court on Nov. 25, seeking to overturn the Planning and Zoning Board’s Nov. 4 decision to update zoning regulations for the Corridor Design District 2 zone and approve a revised site plan for the property at the junction of Naugatuck Avenue and East Broadway.

At the P&Z public hearing, 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 only affect properties in the AE-12 flood zone, limiting the scope of the regulations to the Beach Shore Village property.

Resident and Walnut Beach businesswoman Susan Patrick said the zoning change thwarts 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. “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.”

Attorney Joseph A. Kubic listed six reasons why the court should overturn the board’s decision, focusing on the concern that the new regulations are “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,” wrote Kubic in the appeal.

The appeal also seeks to overturn the revised site plan approved by the board, stating that the applicant failed to apply for a special permit or an amendment to the existing special permit to change the uses on the property, as required by the regulations. Kubic further wrote that the board failed to hold a public hearing on the site plan application and the amendment to the special permit, also required by the regulations.

Responding to the appeal, Lynch wrote in a Nov. 30 email that he believed the lawsuit had no legal basis.

“I am confident this appeal will be dismissed in Superior Court in due course,” wrote Lynch.

At the board’s Dec. 1 meeting, Lynch presented the request for a minor amendment and the revised site plan, essentially agreeing with the portion of the appeal that stated these two items were not on the Nov. 4 agenda. Without discussion, the board unanimously approved these requests, reaffirming its Nov. 4 vote.

With a few of the neighbors sitting in the audience, Lynch said the proposals did not require a public hearing, and asked that the board enter into the record the information from the presentation at the Nov. 4 meeting.

City Attorney David B. Sulkis said the Nov. 4 agenda was missing these two items. Sulkis said he consulted with the city attorney, who said it would be “cleaner” to put them back on the agenda for the board to review.

He said that the notices in the newspaper were correct because they listed the proposal for the zone change. Sulkis further said the board was not required to list the request for the minor amendment to the special permit and the coastal management site plan review in the newspaper notice.

“Whatever was required to be put into the paper was done correctly. There were no other defects in the notification, just the agenda,” said Sulkis.