SUNDERLAND — After several hearings with the Zoning Board of Appeals regarding a 9,100-square-foot Dollar General being proposed for the corner of Route 116 and Clark Mountain Road, Michael Pill, the attorney representing the applicant, Calito Development Group, filed a lawsuit against the town Thursday afternoon.
The lawsuit, a Land Court petition, stems from a disagreement between Pill and Town Counsel Michael D’Ortenzio Jr. about whether the property consists of one or two parcels.
A 1992 deed recognized the property in question as a single parcel. In 2014, the Planning Board endorsed an Approval Not Required (ANR) plan, or a land division that does not require a formal review process, dividing the property into two separate parcels. As an ANR, the separation was not recorded in the Registry of Deeds.
While D’Ortenzio believes the ANR effectively splits the property, Pill disagrees. During the ZBA meeting on Wednesday night, D’Ortenzio said he considers the ANR plan to be legally valid, because the Planning Board endorsed it in 2014.
“The registry is not the be-all-end-all, because you are not required by law to record those sorts of things happening with the registry, and that’s what makes this a little complicated,” D’Ortenzio said.
Over the phone on Thursday, Pill argued that the ANR separation lacked validity without a recording in the Registry of Deeds.
“Here, yes, there was a plan, it was clear what they planned to do, but they never followed through with it. There was never a deed that actually separated the lots,” Pill said.
With the ANR plan effectively splitting the property into two parcels, the only access point the ZBA has identified for a driveway for the proposed Dollar General is a 21-foot-wide space between them, a gap based on driveway separation requirements.
In a memorandum Pill sent to D’Ortenzio, Pill said a decision recognizing the 2014 ANR as a valid separation constituted a “taking.” This refers to a government regulation on a private property that deprives the owner of the property’s value and, therefore, requires the government to pay compensation. With only one identified access point instead of spaces for an ingress and egress, Pill said the ANR qualifies as a taking.
“It has completely landlocked that parcel,” Pill said, estimating the property’s value at $400,000.
D’Ortenzio, on the other hand, told the ZBA that he believes the situation falls outside a taking because although viewing the property as two parcels would limit the driveway space, the gap is still suitable for the driveway of a single-family home. In a memorandum sent to Pill, D’Ortenzio said, “A property owner cannot prove a total taking by proving only that the government has barred one potential use of the property, such as using it as the site of a business.”
Pill said he decided to file a lawsuit to settle the disagreement with an impartial judge. He said the lawsuit shouldn’t slow or freeze the special permit process with other issues still on the table to be discussed further, such as the project’s impact on traffic and the stormwater and drainage report.
“We’re going to the impartial decisionmaker, which is a Land Court judge,” Pill said. He added that he also plans to file a public records request to uncover “what goes on behind the scenes.”
Although ZBA members discussed the two attorneys’ interpretations at their meeting, they reached no decision because the applicant asked for a continuance, their second such request. When D’Ortenzio asked for their initial reactions, the majority of the board members expressed an inclination to continue the driveway discussion.
At the start of the meeting, D’Ortenzio told the ZBA he is not a judge and reminded members of their freedom to agree with either his or Pill’s interpretation of the driveway question.
“That’s why we wanted to have this conversation, because it’s very nuanced and it can make your head hurt,” said ZBA Chair Steve Krol. “I’d love to be done with this by the time I turn 100.”
During public comment, Sunderland resident Aaron Kupec said the board has “been more than accommodating to the applicant” and thanked town counsel for his summary, adding, “I think you should trust him because he doesn’t have a dog in this fight. I mean we’re paying him; the applicant’s paying their attorney.”
After a short pause, Kupec told the board, “Don’t be bullied.”
In response, Pill said over the phone, “Well, those are the opponents, they’re the special interest group. What else do you expect from them?
“The most unfortunate thing is a limited number of project opponents are misusing the town to have every taxpayer in the town subsidize their opposition,” Pill said.
ZBA decides on peer reviewer
After deciding to seek peer reviewers for the stormwater and drainage report, the ZBA decided between proposals from Tighe & Bond, Berkshire Design Group and The Zengineer. The board settled on Zengineer largely due to the detail in the proposal, which described a $8,700 peer review within four to six weeks of signing an agreement.
The results of the peer review will likely be discussed at the next public hearing for the proposed Dollar General store on Wednesday, Nov. 19, at 7 p.m. at Town Hall.