A Superior Court judge yesterday sustained 2 objections to Old Mill Grocery & Deli’s “nonconforming use” of their 107-year-old property on Hillspoint Road.
The sweeping decision could have implications for 2 other businesses in Westport — and for other actions taken by the Planning & Zoning Commission.
Judge Dale Radcliffe’s 21-page ruling involved a pair of text amendments, adopted by the P&Z in 2024.
The first permitted the consumption of alcoholic beverages in a retail food establishment located in a “B” residential zone.
The goal was to “offer more flexibility to … existing establishments to keep afloat.”
Old Mill Grocery & Deli. (Photo/Matt Murray)
Many members of the public advocated for the text amendment, which was proposed by OMG’s owner, the Soundview Empowerment Alliance (SEA). The non-profit — which includes neighbors and other Westporters — bought the building several years ago, to keep it as a market and community hub.
A small group of residents appealed the text amendment. They maintained that it constituted “spot zoning,” and illegally expanded a non-conforming use. They also alleged that the P&Z usurped the powers of the Zoning Board of Appeals, by granting a zoning variance that only the ZBA can give.
While the appeal was pending, the SEA submitted a second text amendment. Changes — involving Old Mill Grocery’s use of a gelato cart and picnic tables — were designed to address objections raised by the plaintiffs.
In addition to Old Mill Grocery & Deli — operated by Romanacci’s — 2 other businesses would be affected: The Country Store on Wilton Road, and what is now Gruel Britannia on Cross Highway (formerly Christie’s Country Store, and The Porch).
Gruel Britannia on Cross Highway may be affected by the Superior Court ruling.
In December 2024, the P&Z passed that text amendment, 5-0.
In his decision, Judge Radcliffe wrote that “the proposed use of certain nonconforming uses in Westport’s residential zones as Retail Food Establishments (RFE) including the sale of alcoholic beverages and outdoor dining would unambiguously constitute an impermissible expansion of the existing nonconforming uses.
“The use of property as nonconforming is permitted only to the extent that it existed at the time of the adoption of the zoning regulations which rendered it nonconforming. Otherwise, it is prohibited.”
He added, “the Text Amendments were drafted with the clear intent of allowing certain nonconforming uses to operate in a fashion which constituted an expansion of the nonconforming use and avoided the necessity of concocting a legally cognizable hardship, a prerequisite to obtaining a valid variance.”
Old Mill Grocery dates back to the early 1900s. In the 1950s, ’60s and ’70s it was operated by Ken Montgomery.
The judge declined to rule on the plaintiffs’ claim of spot zoning, because the P&Z did not decide to change the zoning classification.
However, he concluded, “Both consolidated appeals are SUSTAINED.” SEA and Old Mill Grocery are “ordered to cease and desist from any use … which is inconsistent with the lawful preexisting nonconforming use existing on the property” prior to adoption of the 2 text amendments.
“The sale of alcoholic beverages at 222 Hillspoint Road, which was not authorized prior to the adoption of the challenged Text Amendments, is found to be illegal, and an unlawful expansion of the nonconforming use of the property.”
This is a developing story. “06880” has reached out to SEA for a comment on what this means for the future of Old Mill Grocery & Deli, and to Planning & Zoning Commission chair Paul Lebowitz and town attorney Ira Bloom, on implications for zoning decisions in Westport generally. Bloom said he is reading the decision, and will reply this afternoon.
