By Brandon T. Bisceglia
What is a “substantially similar” use?
It may seem like an arcane technicality, but it prevented a Cheshire-based therapy center for children with special needs from gaining approval Feb. 20 by the Orange Town Plan and Zoning Commission for a request to move into a former real estate office at 564 Racebrook Road.
Cheshire Fitness Zone was seeking to open a satellite office in a now-vacant building, which contains about 3,000 square feet of space and was most recently occupied by Coldwell Banker Residential Brokerage.
According to its website, CFZ specializes in providing physical, occupational and speech therapy to special-needs children. The business serves clients from birth to age 21.
In addition to its Cheshire headquarters, the business already has a second location in Meriden.
The move required the TPZC’s approval because the office is in a residential zone. The previous tenants were grandfathered in when the zone was created, but the proposed center constitutes a different type of use for the space.
But just how different?
That was the questions the commissioners grappled with in a heated debate over the definitions of zoning regulations that lasted for nearly half an hour.
Commission member Kevin Cornell sparked the discussion when he read a passage from Orange’s zoning rules that says, “No nonconforming use of land or buildings or structures shall be changed to any use which is substantially different in nature.”
“I believe that your use as described and practiced by yourselves is an asset to the community in which it resides,” Cornell said. “But I don’t even get to that issue, because the existing use is a nonconforming use in a residential zone.”
Commissioner Ralph Aschettino argued that the use was, in fact, similar. “The building’s not changed. They’re not asking to expand,” he said.
Aschettino added that the appointment-based nature of CFZ’s operations was not unlike any other professional service.
“You make an appointment. You come in, you come to see me,” he said. “It’s just like if you went to see a lawyer, or if you went to see a real estate agent. How is that different?”
Vice Chair Judy Smith, however, pointed out that approving the project could open the door to future headaches for the commission.
She envisioned an example of a daycare coming to the commission. “Well, there are already children coming into this structure.”
“That’s when the board comes in and makes that determination,” Aschettino rebutted. “I tend to believe that this is the closest (to the current use) we’re going to find.”
Throughout the exchange, CFZ founder Craig Goldstein and Frank D’Ostilio, the owner of the Racebrook Road property, stood at the nearby podium, occasionally trying to nudge the discussion in their favor. At one point, D’Ostilio even suggested that real estate agents were “financial therapists,” drawing laughter from the room.
This was the second time the applicants went before the commission. They had been prepared to address concerns that were raised during their first appearance, which revolved around questions about whether there would be an increase in the intensity of the site’s use or the traffic in the neighborhood. Several nearby residents wrote letters saying they worried the site would make traffic worse.
Goldstein and D’Ostilio began their time on their second evening in front of the commission by presenting a detailed comparison of the traffic caused by the real estate offices with their own business.
They seemed to convince the commission on this point. But the entire endeavor proved moot, as commissioner Paul Kaplan expressed near the end of the debate.
“This is going to be, certainly, not a more intensive use,” he said. “I don’t think intensity is the issue here at all.”
Ultimately, Kaplan and Aschettino voted to find CFZ a substantially similar use. Cornell and Smith voted against. The split meant the motion didn’t carry a majority, and CFZ would have to find a different home.