'They had no case,' Trumbull attorney says as judge rejects housing development challenge

TRUMBULL — The Planning & Zoning Commission’s decision to rezone the former United Healthcare building on Route 111 has survived yet another court challenge, and the developer is free to proceed with plans to construct a mixed 55-and-older residential complex on the site, town officials said.

The state Appellate Court on Nov. 20 rejected a Petition for Certification filed by former Trumbull First Selectman Timothy Herbst on behalf of three Woodland Hills Condominiums residents. The residents live across Route 111 from the site and have been challenging a P&Z decision to rezone the property, located at 48 Monroe Turnpike, since January 2019. The zone change cleared the way for a mixed 55-and-older development on the site of the former office building between Route 25 and the Home Depot plaza.

“They had no case,” town attorney James Nugent said. “Now, we are very hopeful that the applicant will proceed.”

In his 125-page motion, Herbst argued the Appellate Court should hear an appeal to Judge Dale Radcliffe’s April 29 dismissal of the case. Herbst claimed comments made by Town Attorney Daniel Schopick during a 2018 P&Z hearing and a brief conversation between zoning commission member Anthony Chory and town Economic and Community Development Director Rina Bakalar should have been addressed in Radcliffe’s decision.

“These are issues of great public importance as they implicate all parties’ rights to fundamental fairness in administrative proceedings as well as the public’s trust and confidence in these proceedings,” Herbst wrote in his petition. “Therefore, guidance on these issues is needed ... for all parties and their counsel in land-use matters.”

Radcliffe, in his ruling, rejected the claim that Chory had prejudged the application after engaging in ex-parte communication with Bakalar. An ex-parte communication is any communication between a judge or juror and an interested party in a legal case without proper notice and not on the public record.

In this case, Chory, as a commission member, was acting as a judge in a zoning decision. Bakalar, as the economic development director, could be seen as having an interest in the outcome of a development project, Herbst argued.

Bakalar had met with Chory to discuss general economic development issues in town, according to the April 29 decision. The meeting occurred while the 48 Monroe Turnpike applications were pending. Chory had commented about noise levels at the site, before saying 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.

Chory, at a hearing a year after the exchange, confirmed he had met with Bakalar. While he did not recall the details of the conversation, he said it was possible it had occurred.

“There is no evidence that Bakalar provided any information to Commissioner Chory,” Radcliffe wrote. “Since he does not remember the conversation, no information of an ex-parte nature could have been communicated to other members of the commission.”

Herbst had also claimed that Schopick improperly influenced the commissioners, rendering the public hearing on the zone change fundamentally unfair.

Schopick had intervened in the Dec. 19, 2018 portion of the public hearing when Herbst argued the development could be a burden 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 ruled the exchange between Herbst and Schopick had taken place 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.

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.

According to Nugent, the next step in the process would be for the developers to present site plans to the Planning & Zoning Commission with specific design details.

deng@trumbulltimes.com