Walgreen's cancels plan for Southport site as lawsuit alleges improprieties
Plans to build a new Walgreen's pharmacy on the Post Road in the Southport section of town have been withdrawn.
The national pharmacy chain's decision to cancel its lease follows a legal challenge filed by neighbors against last year's Town Plan and Zoning Commission approval for the project, which would have seen Walgreen's move its outlet at 1870 Post Road East in Westport just over the border to a site bordered by Post Road and Kings Highway West in Fairfield.
Former Selectman Sherri Steeneck, manager of the LLC that owns the property, confirmed this week that Walgreen's is no longer the tenant for the property.
"I am going forward with the defense of the appeal as manager of the LLC," Steeneck said. "I am looking at all potential tenants, but right now, I'm focusing on winning the appeal."
That legal challenge, meanwhile, has taken a personal tone, with the plaintiffs calling into question Steeneck's support for current TPZ Vice Chairman Gerry Alessi when he was appointed to the panel in 2011.
The plaintiffs in the case -- neighbors Suzanne Marzziotti, Richard E. Pinto, David L. Curtis, Phyllis Furlong, Sharon Sterne and Richard and Susan White -- are represented by lawyer Joel Green, and want to introduce an email Steeneck sent after the TPZ vote on the proposal, as well an email two TPZ members sent prior to the vote.
According to the motion Green filed March 20, the commission or "one or more of its members" who voted in favor the applications related to the Walgreen's project relied on "improper communications" that prejudiced some votes and improperly influenced members who voted to approve both a zone change and special permit.
John Knuff, the lawyer representing Best Invest KHW SPT LLC, in his response filed April 1, said Green's motion "makes a series of personal and prejudicial allegations against members of the commission and against (Steeneck)," who, while a member of Best Invest, is a non-party to the appeals.
Included in the evidence Green seeks to introduce to support the lawsuit is an email from TPZ Commissioner Jim Kennelly to Commissioner Seth Baratz, dated Oct. 28. It reads, "Just so u are aware -- Pat J told Richard J that Gerry convinced her that the property would be an 830g if she didn't vote for it. So now she's voting for it."
Patricia Jacobson is a commission member; Rich Jacobs is a former TPZ member who was not on the panel at the time of the vote on the Walgreen's applications. An 8-30(g) application would be an application to build an affordable housing project. Baratz and Kennelly were the only two to vote against the applications.
Green's motion also points out that Steeneck owned or had management interest in the property prior to 2006, and in 2006 she and her family began receiving offers to develop the land. In 2007, Steeneck was appointed to the Board of Selectmen, and while later serving as acting first selectman, supported Alessi's appointment as an alternate member of the TPZ.
Green also wants to introduce an email Steeneck sent to Kennelly and Baratz the morning after the TPZ vote on the Best Invest property that he said "concludes with an apparent acknowledgement that she had previously informed others that if the applications were not approved or were overturned on appeal" she would file an affordable housing application for the site.
The email states, "By the way, they will like Walgreens better than what I will put in there if it doesn't fly. I didn't tell many people what that would be ... but walk to a bus route, train, grocery store, shops and employment all are perfect for Option 2 and that isn't to be vindictive either ... it's actually the best use in reality."
In his response to the court, Knuff said the information cited by Green does not create a reasonable basis to conclude the decision was predetermined, or that a conflict existed, or that Steeneck was involved in ex parte communications with any commissioners.
"Unhappy with the proper exercise of the commission's discretion in approving the application, the plaintiffs seek to further delay this appeal, contort the facts, and manufacture a basis for sustaining their appeal," Knuff argues. "It is notable that the plaintiffs do not cite one case in support of their motion."