Neighbors from The Regency at Ridgefield have won a court battle against development of a contractors yard off Route 7 near their townhouse complex.

A court decision handed down Oct. 31 overturned the Planning and Zoning Commission’s 2015 approval of plans by Larry Leary Development LLC for construction of a multi-unit contractors yard on a little under three acres off Route 7, just south of The Regency and across from Little Pond.

Planning and Zoning Commission Chairwoman Rebecca Mucchetti said Friday, Nov. 3, that she would decline comment until the commission had discussed it.

The decision was just received today and the full commission has not seen the ruling, nor have we had discussion with counsel, so I think it best to hold off on commenting until all members have had an opportunity to review.”

She expected the commission would discuss the court ruling at its meeting Wednesday night, Nov. 8.

Wilton attorney Robert Fuller, who represented developer Larry Leary in the case, said it was unlikely his client would appeal the decision.

“Very doubtful. You have to file a petition of certification — I don’t think that’s going to happen,” Fuller said. “I’m virtually certain we won’t do that.”

‘Conflicts are rife’

Writing to The Press, John Tartaglia, one of the neighbors opposed to the development, portrayed the legal decision as an indictment of the commission and its processes.

“The Planning & Zoning Commission is probably the most powerful agency in town,” Tartaglia wrote. “In major cases they often act high handedly, favoring development on the most difficult or controversial sites under questionable circumstances. Neighbors are often disdained.

“Conflicts are rife — one lawyer handles most of the cases, and he’s running for election on another board,” Tartaglia said. “In the Leary application three members of the commission recused themselves, one because he was Leary’s partner, one because he was Leary’s lawyer, a third because he was a resident of Regency and too timid to stand up.”

The project was approved 6-to-0 back in the fall of 2015 with three commission members having recused themselves throughout the public hearing process, and abstaining from the vote: Steve Cole, who lives at The Regency; Joe Fossi, a builder who had done projects in partnership with Leary; and Patrick Walsh, an attorney — who is no longer on the commission — who had done work for Leary.

The lawsuit

Neighbors had fought hard against the plans, hiring an attorney and various experts to challenge the proposal through a series of five public hearing sessions in the spring and summer of 2015. The neighbors also fought a 2013 proposal for the relocation of Ergotech Inc., a light manufacturing plant, to the Leary property.

The lawsuit against the commission’s approval of the contractor's yard plan was filed by Greenwich attorney Casey O’Donnell on behalf of 24 unit owners at The Regency condominiums. Although four had dropped out by last week’s ruling, there were 20 neighbors who remained plaintiffs in the case. The neighbors’ suit said construction of the proposed yard “will negatively impact their property, including but not limited to its fair market value and … use and enjoyment of the property.”

The lawsuit also claimed the development plan “does not comply with the requirements, provisions and standards” in the town’s zoning regulations — and it was on this that the plaintiffs appeared to win their case.

Much of the discussion at the series of public hearing sessions on the project centered on noise and dust from blasting planned during construction and the potential pollution of nearby Little Pond with runoff from the site.

The commission’s 2015 resolution on the project included a variety of “conditions of approval” designed as safeguards — restrictions against storage of “pesticides, solvents or other hazardous substances” on the site, or use of the property by tenants “likely to use hazardous substances” such as “painters, landscapers, excavating contractors.”

But the approval was overturned on the basis of regulations concerning the 30-foot front setback in the B-2 business zone that applied in the area, and the plan’s inclusion of a “24-foot wide vehicular aisle, portions of three retaining walls, stormwater management features, a Dumpster, a fence, and portions of parking spaces” within that 30-foot front setback.

Ruling

At the end of a 16-page decision, trial referee Judge William J. Lavery wrote: “It is determined that the commission acted unreasonably in granting the special permit of the developers’ intention to build a multi-unit construction lot, because the plans for the lot include structures and uses in violation of the rules set forth by the Ridgefield Zoning Regulations with respect to front yard setback in Business B-2 Zones. The plaintiffs’ appeal is sustained.”

Planning and Zoning Commission attorney Tom Beecher said the decision focused on the judge’s finding that the setback distance in the regulation not only applied to the main structure and use proposed but also prohibited various aspects of related site development — things like parking spaces, retaining walls and stormwater management structures. Driveways, the judge noted, are exempt from the ruling under another regulation allowing the commission to oversee placement of driveways.

“The judge took a look at the zoning regulations’ definitions of setbacks and structures and found that fences and walls are indeed structures, and that the remaining items were uses, and since they weren’t excepted like driveways are, a strict construction of the regulations  prohibited those items within the setback,” Beecher said.

While there are probably other projects that have been approved over the years with drainage structures or retaining walls and parking areas within the setback distances, Beecher said, it was unlikely these approvals or developed properties would be affected by the ruling.

“I think it’s safe to say there are other applications that would have been granted that may have some of these items within the setback,” he said. “But certainly I wouldn’t be advising the commission to enforce regulations against approvals that they’ve granted.”

If the commission wants to appeal the decision, Beecher said, it would have to file paperwork within 20 days of the date the decision was mailed out: Nov. 1.

Commissioners were expected to discuss the court ruling with Beecher on Wednesday, Nov. 8.

“I’ll advise them,” Beecher said. “Obviously the two positions that jump to the fore are appeal or change the regulations or both, or some combination.”

Attorney Fuller, who represented Leary in the case, suggested that the commission might address some of the problems found in the decision by amending its regulations to clarify the rule in the future.

“You can always alter your regulations to clarify what was intended,” Fuller said. “The commission should do something on this. I don’t know whether they will or not.”