In a significant judgment in favor of the City of Danbury and Cramer & Anderson Partner Dan Casagrande, Superior Court Judge Andrew Roraback issued an April 11 decision dismissing appeals arising from an application for a convenience store operation with a Dunkin’ Donuts drive-through window on busy Mill Plain Road in Danbury.
The city’s Planning Commission denied the 2017 special exception application from property owner ECB Realty, LLC, which appealed the rejection in Superior Court, while also challenging a Zoning Commission amendment adopted in response to the plans for the Dunkin’ Donuts drive-through.
In his highly detailed Memorandum of Decision, Judge Roraback upheld the actions of the Danbury land-use agencies, while affirming the arguments presented by Attorney Casagrande, who represented the Planning and Zoning commissions.
As part of his decision, Judge Roraback agreed with Attorney Casagrande that all actions undertaken by Danbury Director of Planning Sharon Calitro in connection with a complex series of events were proper and initiated with the best interests of the city in mind.
“This decision is a testament to the professionalism and integrity of Planning Director Calitro in guiding the commissions through these applications,” said Attorney Casagrande.
In his decision, Judge Roraback outlined the genesis of the actions that pitted ECB against the land-use agencies: “A pre-application meeting on the special exception request was held with Sharon Calitro, the City’s Director of Planning. Shortly after that meeting, on March 23, 2017, Calitro herself filed a petition with Zoning seeking an amendment to the zoning regulations for the CA-80 zone … . It is evident that this petition was precipitated by Calitro’s view that ECB’s application for a convenience store with a drive-through window was for a use that ought to have fallen within the ambit of the explicit prohibition of fast food.”
Judge Roraback agreed with Calitro’s assessment that the project would have the same negative impact as the type of fast food establishments expressly disallowed by the zoning regulations—especially as 60 percent of the sales at the proposed establishment would have come through the drive-through, indicating a volume of traffic that would be problematic.
“In this case, it is self-evident that the drive-through component of the convenience store proposed by the applicant shared many distinguishing features also found in fast food restaurants,” Judge Roraback wrote. “Notably, and important from a zoning perspective, the commission could have found that a convenience store that might include a Dunkin Donuts drive-through could generate traffic volumes comparable to those generated by patrons of fast food restaurants who use their drive-through features to conveniently procure prepared food and beverages.”
Key issues for the judge also concerned the timing of the zoning amendment and the motivations for Calitro’s actions.
Following the March 23 pre-application meeting, Calitro filed the petition with the Zoning Commission, seeking the prohibitive amendment, but before the amendment was considered ECB filed its special exception application with the Planning Commission on April 5, 2017.
Meanwhile, in following state statutes, the zoning panel had referred the proposed amendment to the planning panel, which voted four-to-one to approve the changes. On April 25, the Zoning Commission voted to approve the proposed amendment to the regulations to “prohibit uses, except for licensed pharmacies delivering drugs, from being accessed by a drive-in or drive-through facility by which food, beverages and similar products are dispensed to patrons within motor vehicles.”
Given that the special exception application had to be considered under the existing rules prior to the amendment, public hearings were held on the application in the summer, and the planning panel denied it on October 4, 2017.
“What the court must … decide is whether the action of Zoning in amending the regulations only after learning of the appellant’s proposal, and while that proposal was pending before Planning, operates to render the amendment unlawful,” Judge Roraback wrote.
In siding with Calitro on his way to ultimately upholding the actions of Danbury’s land-use agencies, Judge Roraback wrote, “In this case, it is evident that Calitro believed that the subject application was in contravention of what the zoning regulations intended to accomplish with respect to the regulation of development in the CA-80 district. Her professional opinion guided her in petitioning for an amendment to the zoning regulations in order to forestall what she believed might be future efforts to circumvent the express prohibition against fast food restaurants in the CA-80 zone. The record is devoid of any evidence that Calitro had any personal or financial interest in the proposed change or that she harbored any animus towards the applicant who submitted the proposal. The fact that Zoning approved the zone change at her behest does not operate to invalidate the legitimacy of its own ultimate legislative determination.”
The next issue to decide was the validity of the Planning Commission’s denial of an application that, by law, was not subject to the prohibitions of the zoning amendment.
This question divided into two parts, Judge Roraback decided— the merits of the Planning Commission’s denial, and whether “it was unlawful for Calitro or members of her staff to have provided guidance to Planning with regard to the appellant’s special exception application after Calitro had proposed an amendment to the zoning regulations that would in the future prohibit the special exception uses at issue in ECB’s application.”
On the latter issue, Judge Roraback wrote, “There is … no evidence to suggest that Calitro had any personal or pecuniary interest in the actions of either Zoning or Planning in connection with the issues raised in this appeal. … Insofar as that claim is directed at Calitro’s conduct in connection with professional advice offered to Planning, it should be noted that Jennifer Emminger, Associate Planner, took on this responsibility and that Calitro herself did not participate in advising Planning on this application.”
Later, Judge Roraback adds, “There is no evidence in the record that Calitro had any personal interest in the amendment or the special exception application beyond what she believed her professional responsibilities to demand. Also absent from the record is any evidence that she harbored personal animus toward the applicant or its members. There is similarly a complete lack of evidence which would suggest that any member of Planning was tainted by any disqualifying personal interest or was otherwise unable to evaluate this application on its merits.”
In considering the merits of the Planning Commission’s denial of the application, Judge Roraback begins by noting that “Planning unanimously adopted a thirteen page resolution of denial in which it set forth four distinct reasons why the appellant’s application failed to satisfy the criteria set forth in the zoning regulations for the granting of a special permit,” and citing case law establishing that a denial “must be sustained if even one of the stated reasons is sufficient to support it.”
The Planning Commission’s four reasons were: “the proposed use functions as a use not permitted in the CA-80 Zoning District” because the proposed use did not qualify as a convenience market as defined in the zoning regulations, which is “a retail store that primarily sells prepackaged food items, tobacco, periodicals and household goods.”; the City Traffic Engineer’s report identified “an unconventional layout [that] does not adhere to normal traffic design standards or practice”; the application did not satisfy three distinct sections of Danbury’s zoning regulations concerning loading spaces, deliveries, and traffic flow—and lastly, the application did not adhere to a zoning regulation requiring that a proposed use must “not create conditions adversely affecting traffic safety or which will cause undue traffic congestion,” and that it “will not create conditions which will jeopardize public health and safety.”
“After reviewing the records of both decisions appealed from, reading all of the briefs submitted and listening closely to the oral arguments of the parties, this court finds in favor of both Zoning and Planning in the appeals from their respective decisions,” Judge Roraback determined.
Partner Daniel E. Casagrande is a highly experienced attorney based in the firm’s Danbury office. His primary Practice Areas include Land Use & Environmental Law, Municipal Law, and Planning & Zoning Land Use issues. He has served as an outside Assistant Corporation Counsel for the City of Danbury from 1990 through the present.
Based in western Connecticut, Cramer & Anderson has a hometown sensibility, a strong regional presence, and a worldly outlook in Practice Areas extending from Personal Injury to Real Estate, Estate Planning, Divorce & Family Law, and much more. In addition to a flagship office on the Green in New Milford, the firm has offices in Danbury, Litchfield, Kent, Washington Depot, and a new office in Ridgefield, serving Fairfield County. For more information, see the website at www.crameranderson.com or call the New Milford office at (860) 355-2631.