Smart Growth for Vernon, CT
Lawsuit filed against SW PZC over grocery-store limits

By Megan Collins
Journal Inquirer
March 9, 2007

SOUTH WINDSOR - What began as an attempt to reduce the separating distance between grocery stores by 500 feet has now led to a lawsuit against the town's Planning and Zoning Commission.

The suit, filed by Calvary Church of the Assemblies of God and two businesses with plans to purchase a parcel of the church's land, Margaret Development Co. LLC and Deming Plaza LLC, argues that the required 1,500-foot separation between grocery stores violates the entities' constitutional rights.

Harold Cummings, a local lawyer representing the church and businesses, went before the commission three times in recent months to try to amend the zoning regulation so his clients could develop a grocery store on a 4.6-acre parcel of the church's land.

His first application sought a reduction to 1,000 feet between grocery stores, while his second proposed eliminating it entirely. When the commission rejected both applications, Cummings proposed limiting the regulation only to grocery stores within the Buckland Road Gateway Development Zone, which currently has a Highland Park Market at Evergreen Walk.

The parcel of land on which his clients wish to build is more than 1,500 feet from Highland Park, but is less than that distance from the Stop & Shop in the South Windsor center.

But with some PZC members arguing that allowing such a proposal could lead to a line of grocery stores on one street, the commission again voted 4-3 to deny Cummings' application.

In his appeal, Cummings argues that the two businesses he represents "have a specific, personal, and legal right to pursue the development" of the church's property.

He also says that as a result of the commission's actions, each entity will "suffer great financial loss and be deprived of lawful use of their property."

The decision of PZC members to uphold the regulation, which Cummings has frequently called "arbitrary," was influenced by the "extreme bias" of members who repeatedly expressed their opposition to the applications, he says.

PZC members could not comment on the appeal, but when the commission voted on the applications, Chairman Patrick Kennedy agreed that it was "an irrational regulation," while PZC member Gary Bazzano said that maintaining the regulation would still allow for other grocery stores in the area.

Cummings said on Thursday that state statute gives town zoning commissions the power to "regulate property to meet public health, safety, and welfare needs," but that the commission's decisions regarding the grocery store regulation stepped beyond that authority.

"When a zoning commission adopts a requirement, they have the burden of showing that the restriction is to protect public health, safety, and welfare, not to protect the competitive advantage of another property owner on the street," Cummings said. "And with all due respect, they can't."

But PZC member Bart Pacekonis did address the safety implications of amending the regulation when he said that more grocery stores would generate higher volumes of traffic, and with that, safety concerns.

Although Cummings could not name the grocery store his clients plan to develop, he said that it is a chain looking to come into the area that would attract people from all over the region.

"It's not your neighborhood store," he said. "It's something that people would deliberately travel to, which is why they're interested in the Gateway Zone because it's supposed to be a destination zone."

He added that he found it ironic that the commission "has gone to great lengths to attract commercial retail establishments, and now they're worried about traffic."

"What it gets back to is fundamental, basic, and constitutional protection under the law," Cummings said.

©Journal Inquirer 2007