Third time's the charm for Halls Road convenience store
May 8—OLD LYME — A New London Superior Court judge has ruled in favor of a thrice-rejected gas station proposal on Halls Road.
The decision comes amid resistance from residents and Zoning Commission members over the past decade to plans for turning a car repair garage into a convenience store.
This is the first time a judge has come down in favor of the New York-based fuel distributor's proposal for 85 Halls Road. Two previous denials by the Zoning Commission, in 2012 and 2017, were upheld by the court.
New London Superior Court Judge Edward V. O'Hanlan last week sent the proposal back to the commission with a directive to approve it. O'Hanlan said the applicant, an LLC belonging to CPD Energy Corp., proved that all four reasons the commission gave for justifying the denial were flawed.
The CPD store is proposed to operate up to 24 hours a day, seven days a week and to serve prepackaged food as well as beverages for grab-and-go purchase. Designs meant to address concerns in the previous denials included a new one-way-in, one-way-out layout, more green space and sidewalks along the front of the property.
The commission's denial was based on a traffic study of the project it believed would create more traffic than the professional engineer hired by CPD predicted there'd be. The commission also said the existing gas station already has a convenience store component, which is not allowed in the regulations.
But O'Hanlan ruled the commission is required to rely on expert testimony rather than their own "experience as laymen."
He cited case law establishing an agency "must not disregard the only expert evidence available on the issue when the commission members lack their own expertise or knowledge."
O'Hanlan said the town's zoning regulations allow retail options at places that sell gas. And if the regulations didn't allow it, he said the commission could have issued a cease and desist order for any existing violation instead of letting three separate applications for expansion to proceed.
Old Lyme land use coordinator Eric Knapp said the commission would be discussing whether to take the judge's decision to the state Appellate Court at its meeting Monday night. The decision was expected after press time.
Proposed improvements
Gas stations on Halls Road have long been a flash point for those opposing overdevelopment of the area. One solution is to encourage other types of development, like a neighborhood shopping center with a mix of businesses and apartments that has evolved since 2015 as an initiative of the Halls Road Improvements Committee.
The committee's most recent proposal would create an optional "overlay" district in zoning regulations that makes room for apartments or condominiums not otherwise allowed on the street. In exchange, developers who take advantage of the special regulations would be required to incorporate shops or restaurants on the first floor of any building.
The committee's application to amend the zoning regulations was rejected in March when it failed to yield the supermajority among Zoning Commission members that was triggered when the Planning Commission didn't endorse it.
Halls Road Improvements Committee Chairman Edie Twining said the judge's decision in the convenience store case is another indication that things are changing on Halls Road whether people want them to or not. She cited the committee's proposed zoning changes as a way to provide competition in a market currently attractive to truck stop-type amenities.
Twining said she will meet separately with the Planning Commission and the Zoning Commission to talk about again seeking approval for the overlay district.
Committee member Howard Margules said the lawsuit shows it is complicated, difficult and expensive for the Zoning Commission to prevent business "they deem a poor fit for Old Lyme."
He said the overlay concept can help solve the problem in part because gas stations are not among the acceptable businesses in the incentive district.
"Equally important, the overlay district will be more attractive to a greater variety of development" because it allows for potentially lucrative apartments along with ground level, street facing visibility on the busy road, he said.
Knapp, the land use coordinator, on Monday said those who want to build gas stations can do so by applying for a special permit based on existing regulations, which will remain in place even if the overlay district is added.
"Whether the Zoning Commission sees fit to approve the special permit is sort of a different question, but theoretically they are allowed to apply," he said.
Citing concerns posed by those like Margules, he said he wasn't sure why people think the judge's decision means "there's going to be a new rush of gas station applications."
"No one has expressed interest in doing that up until now," he said. "I'm not sure why this court case suddenly changes the equation dramatically."
But Margules pointed to Big Y gas station and convenience store proposed on the Route 156 end of Halls Road over two years ago. It sparked a public outcry from residents opposed to traffic, environmental impacts and bad aesthetics.
The issue became moot when the property was purchased by local investment management professional David Kelsey, who is also the Board of Finance chairman and a member of the Halls Road Improvements Committee.
"I kind of solved the problem," he told The Day at the time. "I just bought the property and it's not going to be a gas station."
