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P&Zs 'Denial Without Prejudice' Pondered
By Kirk Lang
Printed in the Westport News

Neighbors of the former F.D. Rich property are upset over recent interpretations of the Planning and Zoning Commission's denial without prejudice last month of ARS Partners' application to site 22 single-family homes on the former F.D. Rich property.

ARS attorney Larry Weisman, according to his appeal of the decision, believes that since the commission asked ARS to further address the environmental issue, because of alleged insufficient testing data, the denial without prejudice "constitutes a recognition that the plaintiff's application complies in all respects with the applicable regulations," other than what the P&Z, in its denial, has asked ARS to address, namely additional environmental testing, by an independent party.

P&Z Commissioner Bill Crowther, the only zoner to comment on the record, said he believes Weisman's interpretation of the denial without prejudice is "incorrect."

"We never addressed any of the other issues," he said. "We neither approved or disapproved or disapproved anything else. We didn't get into anything else. The only we discussed was the environmental issue."

Jamie Cochrane, who lives on Partrick Road, in a letter recently submitted to the Westport News, states it was Town Attorney Ira Bloom's guidance of First Selectwoman Diane Goss Farrell and the commission to use the seldom-used denial without prejudice in order to allow for independent environmental testing and then for a new application to be submitted once the results were known.

"Seemed like a fair, simple and straightforward concept," said Cochrane, "But somehow an absurd idea has emerged that everything else applied for by ARS has been "passively approved" without even a moment's discussion by the commission. If Mr. Bloom knew this was a possibility, why didn't he make it clear to the commission? Did Mr. Bloom even tell Ms. Farrell of this possibility before she requested this decision? And what is her reaction now?"

Bloom was asked to expound on the denial without prejudice option that the P&Z decided to go with but he declined to answer.

"I'm not going to discuss this case at this point," he said. "I prefer not to comment in the newspaper on this case while multiple lawsuits are pending. At the proper time, the questions regarding denial without prejudice and all other legal issues will be addressed when we submit legal briefs (the time of which is unclear).

Bloom did note however, he outlined to the P&Z in a work session all the different decision-making options they had regarding the ARS application approval, denial and denial without prejudice.

Often, denial without prejudice decisions are rendered when an applicant has submitted incomplete or insufficient evidence pertaining to the subject application.

During the work session when the P&Z denied the ARS application without prejudice, Commissioner Michael Stashower was trying to attach conditions the applicant had agreed to onto the denial. He feared if ARS appealed the decision and won in court, things agreed to by the applicant in the event of an approval might not be enforceable, depending upon which way the judge ruled. Although the P&Z would issue a denial without prejudice, Stashower tried to get the conditions attached to the denial so the courts could view what the zoning board had concerns about and what the applicant had agreed to, above and beyond existing regulations.

Commission Chairman Eleanor Lowenstein said conditions could not be attached to a denial without prejudice. She added that other issues could not be addressed in a denial without prejudice and that lack of information or the need for more information could be cited as reasons for a denial without prejudice.

P&Z Director Katherine Barnard was asked Monday what exactly a denial without prejudice is about.

"It deals with specific issues that need to be addressed and if they're addressed, generally the commission would approve (an application), but any new hearing most always brings new information. I don't want to say it's an automatic approval."

In November 2001, Weisman tried to amend the Open Space Residential District regulations to get five bedrooms in each single-family unit ARS would later propose to build. The P&Z denied the text amendment without prejudice. The commission said, among other things, more information about the history of the OSRD regulations and more information about the need and impact of the regulation change needed to be submitted. While it was a text amendment and not a site plan application, Weisman never got his fifth bedroom per dwelling unit.

Most P&Z commissioners have been reluctant to speak on the record regarding Weisman's claims of a tacit approval of the application, other than the request for further environmental studies, but during the zoning board's work session that led to the denial without prejudice, discussion among commissioners indicated there were still many questions to be answered. Many however, said other issues should not be addressed until a complete environmental review is conducted. Lowenstein had thought about approving the application and attaching a number of conditions but at the same time request ARS to come back with more thorough and updated testing. In the end, however, a denial without prejudice decision was agreed upon. While Weisman has his own interpretation of the denial, it should be noted he did not attend the work session and listen to the discussions that led to the result.