After twice withdrawing an application to build a Stop & Shop gas station on vacant land at 528 Monroe Turnpike, Monroe Gas LLC came back with an application to rezone a small portion at the back of its property from residential to commercial to enable the station to hook into an existing septic system.
Attorney Stephen Studer contends a Planning & Zoning Commission denial of his client's request to make the entire parcel commercial amounts to inverse condemnation, taking away an owner's ability to make reasonable use of the property.
But the majority of the commission and Town Planner Will Agresta expressed disagreement to that claim during a hearing last Thursday and Agresta will draft a motion of denial for the P&Z to vote on at a future meeting.
Timothy Onderko, an engineer for the applicant, said there is no place to install a septic system on the commercially zoned portion of the property because of a requirement for naturally occurring soil. Native soils were hauled away and replaced with fill during a clean up of the brownfield — which used to be used to store heating oil, Onderko explained.
Further, Studer said the Connecticut Department of Energy & Environmental Protection would ask his client why it's wasting their time applying to build a new septic system when one already exists on the property.
Complicating matters, existing deed restrictions between Monroe Gas LLC's property and the Sportini family's Cross Hill Road property to the rear keeps the land with the septic system as passive open space in perpetuity (forever).
Studer said this would prevent Monroe Gas LLC from building a driveway to access the leaching fields for maintenance.
"If my client built a house, we wouldn't need a zone change and could use the septic system," Studer said. "But you can't build a house in a B-2 zone. We have a classic catch 22."
Green also disagrees with Studer's contention that the deed restrictions will be in place in perpetuity, because Green said property owners could change and a new owner could agree to release the restrictions in an instant.
Creating Their Own Problem
When the P&Z began to deliberate on the application, Commissioner James Weinberg expressed his support.
"I believe the zone change is an appropriate one," he said. "I don't think the property could conceivably be used for anything other than what we're talking about: An underground septic field.
"I think that Attorney Green did a great job of bringing up issues. In law, lawyers have a great way of presenting things to their own viewpoint. But I don't feel anything was addressed to make me think this isn't an appropriate zone change."
Commission Brian Quinn disagreed.
"I feel the zone change effects greatly the people living behind the property and beside it, " he said "It's spot zoning in my opinion and I'm not for it."
Vice Chairman William Porter said, unlike past zone change requests, this is not a case of a burden caused by the town revising zoning maps decades ago causing the split of a property into two zones. Rather, the split was caused by a residential property owner transferring ownership to a neighboring commercial owner.
"This isn't a situation where town zoning maps created the situation," Porter said. "Therefore, they created the split zone on this property. We had made changes to make a property more in line with surrounding zones. In this case it's changing a property to another zone."
Commissioner Karen Martin agreed. She also said an approval of the zone change could set a precedent.
Chairman Patrick O'Hara said, "I'm for the zone change. It's a weird zone change, but the fact that forever it can only be one thing ..." he added, while alluding to the deed restrictions. "I hear the writing on the wall," O'Hara said. "It's 3 to 2."
Weinberg pointed out how the commission had given the applicant guidance, recommending that Monroe Gas LLC come back for the zone change. He said he thought the commission owed the applicant an explanation for a denial. But O'Hara said commissioners had just explained their positions.
Studer had expressed his belief that construction of a five-bay-10-pump gas station with a kiosk — or another commercial use — would enhance the appearance of the property and generate tax revenue and jobs.
"I'm disappointed with the direction this has taken," he said after the hearing.
Studer will discuss next steps with his client.
Green said, "Certainly, we're encouraged by the preliminary comments by members of the commission." But he added that the P&Z still has yet to vote on it.