By John Schwing

WESTPORT — The town’s top zoning officer was just “doing her job” when she signed a liquor license application for the Old Mill Grocery & Deli, the Zoning Board of Appeals ruled Tuesday.

The courts, however, will decide the legality of the underlying zoning regulation that Mary Young, then the town’s planning and zoning director, said left her “no choice” but to grant approval for the liquor license. She retired from the job in October.

After reviewing an appeal lodged by opponents of Young’s Aug. 8 decision that allows beer and wine service at 222 Hillspoint Road, the ZBA unanimously supported the administrative action.

The board had only “a narrow purview” in acting on the appeal, board Chair Jim Ezzes said, noting the long and still-unresolved saga of efforts by the building owner, Soundview Empowerment Alliance Inc., to secure permission for alcohol sales by its tenant.

The effort to allow sales of beer and wine at the market was initiated early last spring to ensure the profitability of the market’s latest operator, Romanacci restaurant.

The issue has been debated at several lengthy Planning and Zoning Commission hearings, in turn leading to revisions of the town’s zoning regulations, a lawsuit challenging its approval and an aborted ZBA hearing last month when lawyers on both sides of the debate filed last-minute documents, prompting an exasperated Ezzes to call for postponement.

When the issue resurfaced at Tuesday’s ZBA meeting, it was only to consider the appeal filed by opponents asking the board to overturn Young’s decision to sign the café liquor license. They contend it was issued improperly following the P&Z’s illegal approval of a revised text amendment in June — which they also are challenging in Superior Court.

In fact, the P&Z last week also heard more arguments over liquor service at the market as advocates introduced another, more comprehensive text amendment designed to define rules for outdoor dining as well as alcohol sales at three pre-existing food businesses in residential zones. In addition to the Old Mill Grocery, those businesses are The Porch at Christie’s, 161 Cross Highway, and the Country Store, 332 Wilton Road. 

That proposal, which the P&Z delayed acting on, in part appears designed to address issues with the earlier amendment that make it vulnerable to the court challenge. In particular, questions have arisen over “spot” zoning, since the measure was specifically tailored to benefit only the Old Mill Grocery and no other food businesses elsewhere in town.

Those asking the ZBA to overrule Young’s decision argue the action was improper for a litany of reasons spelled out in a long letter by their lawyer, Joel Green, which he summarized at the board’s Tuesday night meeting on Zoom.

Essentially, opponents contend that even though there has been a grocer of some type at 222 Hillspoint Road for more than a century it has never officially been designated a “retail food establishment” and remains a non-conforming use in a Residence B zone, where the sale of alcohol is not permitted. Expansion of that non-conforming use of the property, such as adding on-premises liquor sales, is prohibited, Green said.

The issue before the board, Green said, was not the lawsuit that he filed on behalf of neighbors opposed to the liquor sales or the new amendment awaiting P&Z action, but simply whether the zoning regulations as of Aug. 8 allowed Young to sign off on the liquor permit.

“The answer is no,” Green said, answering his own question. Instead, he suggested, the Old Mill owners should have sought a variance for liquor sales from the ZBA rather than pursuing the long, contentious process that unfolded over a new text amendment before the P&Z.

Eric Bernheim, the lawyer representing property owner, Soundview Empowerment Alliance, said Green’s contention the Old Mill enterprise is a non-conforming use of the property is “irrelevant” since it became a “permitted use” when the P&Z adopted text amendment 843 in June, allowing alcohol sales at 222 Hillspoint Road.

Young, addressing the board, said following P&Z adoption of text amendment 843, she felt, “I had only one decision to make and that was the affirmative decision to endorse” the café liquor permit.

Young said her role was not to “create policy,” but to administer policies as adopted by the P&Z, which in this case was approved after a “transparent” process. “No one got away with anything,” she insisted.

When Romanacci restaurant, operators of the Old Mill Grocery, then asked Young to sign off on their liquor license application, she said, “I did endorse that. I stand by that. I think I had no other choice to make.” 

Neither the lawsuit subsequently filed against the text amendment, nor the revised amendment pending before the P&Z should be factors in the ZBA’s decision on whether she acted properly, Young told the board.

Members of the ZBA, with little discussion, backed Young’s defense and rejected the appeal by a 5-0 vote.

John Schwing, interim editor of the Westport Journal, has held senior editorial and writing posts at southwestern Connecticut media outlets for four decades. Learn more about us here.