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Tension triggered by lawsuit threat to P&Z plan to restrict retail size

A possible legal challenge to a proposed zoning amendment that would restrict the size of retail space downtown sparked tension at the Planning and Zoning Commission meeting Thursday night.

Thomas Cody, a lawyer representing Bedford Square Associates -- the development team that plans to transform the Westport Weston Family Y into retail, apartment and parking complex -- made it clear that if the P&Z adopts the text amendment limiting interior retail space to 10,000 square feet and restricting property mergers, a lawsuit would follow.

"We believe the proposed amendment is illegal and it exceeds the authority of the commission," he said.

Calling the amendment "misguided," Cody added, "Bedford Square Associates intends to protect its rights to the full extent it intends to do."

At the P&Z's Feb. 27 meeting, David Waldman, one of the Bedford Square partners, also strongly criticized the proposal. "It doesn't promote a vibrant downtown," he had said. "It's counterproductive."

Cody filed a petition of protest that will now require a two-thirds majority vote by the P&Z for the amendment to be adopted.

The commission did not vote on the proposal Thursday night.

Cody said Bedford Square Associates has been working on the project to redevelop the Y property for eight years, having bought the adjacent Gunn property for $3,250,000. "They have invested an enormous amount into the planning, the design, the engineering of this project ... They've modified this proposal based on feedback from the staff, the community and the commission."

"This amendment takes direct aim at their current efforts to lease the project," he said. "Why? Because the amendment purports to ... regulate the size of the tenant space in their building."

"I cannot emphasize enough how disruptive this amendment is to those efforts," he said, citing economic consequences.

P&Z Commissioner Jack Whittle, who was central in bringing the proposed amendment forward, downplayed Cody's objections.

"I understand the impacted developer in this case is upset by what feels like the targeted nature of this proposed text amendment, but it wasn't proposed to target anyone ... thinly veiled or not-so-thinly veiled threats of litigation, not withstanding," he said.

Members of the public who spoke at the hearing spoke in both opposition and support of the proposal.

"There must be better ways to encourage small business than taking away the rights of downtown property owners," said Joanne Davidson, representing the Coalition for Westport. Read Full Article 

"We won't be going back to the Main Street of the 1950s," she said. "In the spirit of cooperation, the P&Z should put aside Text Amendment 672."

Glenn Payne called the amendment "onerous," stating the commission "should be supporting businesses to remain here."

He called the desire for more mom-and-pop shops a "romantic notion" and, like others, indicated the town couldn't re-capture the past era of small, locally owned businesses driving the economy.

Connie Greenfield, a former P&Z chairwoman, was among those speaking in support of the amendment. She recounted the tide of anger her commission faced in the early 1980s after approving several large office buildings.

Following that, she said, the P&Z imposed more stringent restrictions on developments, including height and size reductions.

"We were sued," she said. "We were taken to court, but the judge said you have the right to do that. That may cheer you up a little."

"Sometimes lawyers can make things worse, not better," said Don Bergmann, a Representative Town Meeting member from District 1, noting that Cody's threat "starts to scare me in the other direction, because he's suggesting that we can't do some things that are very sensible."

The proposed amendment is "a complicated regulation (and) I think you need a little more time," he said. "I think you need a little more input."

Bergmann said he hopes the legal threat did not reflect badly on Waldman, who he described as "doing a lot of good things for the town."

Commissioner Catherine Walsh took umbrage with Cody's comments.

"This thing was not intended to hurt anyone," she said. "I don't like being threatened with lawsuits."

"This is a public hearing," she said. "This is where we get together and hash it out, and maybe we can make some adjustments to make everyone comfortable and cozy."

Walsh pointed out that 10,000 square feet is the size of the Goodwill store on the Post Road, "which is an enormous building."

She, too, emphasized that it was within the P&Z purview to create restrictions on space and development. "New Canaan does it," she said. "Ridgefield does it."

"We're going to be leaving this (hearing) open, so there'll be further opportunity for the public and the commission to speak about it," said P&Z Chairman Chip Stephens.

He said most people in Westport are "concerned about the nature and the character of the town as a whole. It's not about individual businesses."

The proposal is scheduled for more discussion at the commission's March 20 meeting..

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