Judge tosses appeals on 48 Monroe Tpke. zone change
TRUMBULL — A Superior Court judge has dismissed the legal challenges to a zoning change that cleared the way for a mixed senior housing development at 48 Monroe Tpke. The Trumbull Planning and Zoning Commission had made the change in January 2019.
In an April 29 ruling, Judge Dale Radcliffe dismissed the claims of Old Mine Associates LLC, which owns the adjacent Home Depot property, and three residents in the Woodland Hills Condominiums across Route 111 from the proposed development.
First Selectman Vicki Tesoro praised the ruling, calling the development “a grand slam” for Trumbull.
“I hope this decision will allow this project to move forward expeditiously,” Tesoro said. She added that the estimated $2 million in annual tax revenue “will benefit all our taxpayers.”
The developers of 48 Monroe Tpke. LLC still must present a site plan that meets the new zone’s requirements to the commission before getting approval to begin construction.
In his 21-page decision, Radcliffe ruled that the P&Z had been within its authority to enact the zone change, and commission members, including Anthony Chory and Chairman Fred Garrity, had not acted improperly.
In its appeal, Old Mine Associates, represented by Attorney Joel Green, had complained that a residential facility adjacent to its property would create a nuisance and that the zoning commission had acted arbitrarily in its decision to change the 48 Monroe Tpke’s zone from Business Commercial to Industrial. The change also violated the town’s Plan of Conservation and Development, Green argued.
Radcliffe rejected those arguments, saying the address contains an office building and a free-standing parking garage.
“The fact that multiple uses of land are permitted uses in both (industrial) and Business Commercial indicates that the change of zone is consistent with the comprehensive plan, the zoning regulations and the zoning map,” he wrote.
In the final nine pages of his decision, Radcliffe dissected a series of complaints filed by the Woodland Hills owners, who were represented by former First Selectman Tim Herbst.
Herbst claimed that Town Attorney Daniel Schopick had improperly influenced the commissioners, rendering the public hearing on the zone change fundamentally unfair. He also claimed a conflict of interest involving Garrity and alleged that Chory engaged in off-the-record communications that led to him prejudging the zone change.
Schopick had intervened in the Dec. 19, 2018, portion of the public hearing in which Herbst had sought to portray the development as overly burdensome to the town’s emergency responders.
Herbst asked Sgt. Robert Coppola, a veteran Trumbull officer and president of the police officers’ union, if it was fair to say that Trumbull police “are stretched to the max” as first responders. When Coppola answered “yes” Schopick interjected, saying, “Mr. Herbst, that’s not a question for a police officer to answer.”
Radcliffe noted that the exchange between Herbst and Schopick had occurred after Garrity had decided that the commission would hear Coppola’s testimony and that Schopick had spoken up during a presentation “orchestrated by a politically active attorney and one-time first selectman.”
On the whole, a single isolated incident over the course of a three-night public hearing was not enough to render the entire proceedings unfair, he wrote.
Radcliffe also rejected the argument that Garrity had a conflict of interest in the case and should have recused himself. In 2018, Garrity had produced a training video and accompanying booklet for the SPM Corporation. The company employs Thomas Tesoro, Vicki Tesoro’s husband.
Garrity consulted with Attorney William Bloss, who opined that the contract work did not constitute a conflict. At the Jan. 2, 2019, meeting Garrity read excerpts from Bloss’s letter into the record before voting with the majority in the 4-1 decision to approve the zone change.
“The record supplies no information which illuminates the conflict of interest issue,” Radcliffe wrote. “However, the court applauds Commissioner Garrity’s decision to address the issue in a public forum, rather than allowing it to fester in an atmosphere of gossip and innuendo.”
As for claims that accepting payment for a project from the company that employs the first selectman’s husband demonstrated a personal interest, Radcliffe said such allegations were “utterly untenable and without foundation.”
Finally, Radcliffe rejected claims that Chory had prejudged the application after engaging in communication with Economic and Community Development Director Rina Bakalar.
Bakalar had met with Chory to discuss general economic development issues, according to the decision. The meeting occurred while the 48 Monroe Tpke. applications were pending. Chory had commented about noise levels at the site, before saying that he had no issue with the application. According to Bakalar, she had replied, “I agree.”
Radcliffe wrote that Bakalar had not provided Chory with any information, and that the words ”I agree” from a town employee to a commission member could not be shown to have caused bias or predisposition.
“All three appeals filed in this matter are dismissed,” he concluded.
The proposal, dubbed Rivers Edge, is for a 350-unit mixed residential facility that would consist mostly of active adult, independent and assisted living apartments, plus about 16 memory care units. The property most recently served as the regional headquarters of United Healthcare (formerly Oxford Health Plans) from 1995 to 2015. The current 253,000-square-foot office building and 700-car parking garage have been vacant since 2015.
The plan for the property, according to developers Mark DePecol and Tommy Haendler, is to adapt the office building into an assisted living and independent living facility of about 200 units. The garage would be reused for parking and selectively filled in to form an age-restricted residential building with about 150 units for adults 55 and older.