Sonic Plan May Be Delayed

Sonic’s arrival in Danbury may be delayed by a lawsuit filed or about to be filed by tenants of the shopping center where Sonic wants to build its drive up hamburger restaurant.

One party to the suit, which may already be filed in New Haven, is Xpect Discount, which is the “doing business as,” name of Marc Glassman, Inc. Efforts to reach the Marc Glassman, Inc., attorney were unsuccessful Thursday.

At the proposed Newtown Road site, Xpect is at the top of the parking lot, and Sonic won city approval for a restaurant about three quarters of the way down the lot. The same spot won earlier approval in 2006 as a Starbucks coffee shop, which was never built.

The suit, which was unavailable Thursday, appears to have been filed by Marc Glassman Inc., (Xpect) against its landlord, HB Nitkin Group of Greenwich. Efforts to reach principals at the HB Nitkin Group were unsuccessful Thursday. The group is a private real estate investment firm.

City Deputy Corporation Counsel Les Pinter said he’s heard about a lawsuit that he understands to be between the landlord and tenant, but he hasn’t seen it. He also said it doesn’t appear, as of Thursday at 5:55 p.m., that Danbury is named as a defendant in the suit.

“That could change,” Pinter said.

 Preliminary paperwork mailed to the city and revealed through the Freedom of Information Act, appears to say the tenant (Xpect) thinks the landlord (HB Nitkin) broke the lease by putting Sonic in its parking lot.

“Xpect believes that the proposed Sonic restaurant will drastically reduce the amount of parking available for its store, reduce the store’s visibility, create severe traffic and safety issues in the shopping center and will cause customers to stop and/or avoid shopping at the Danbury Xpect,” wrote Timothy W. Donahue, Donahue, Durham & Noonan, P.C., on behalf of Marc Glassman, Inc.

Donahue, who declined to speak Thursday, asked the city in a letter dated May 16 to, “delay issuance of any additional approvals and/or permits regarding the Sonic restaurant which is proposed until my client has an opportunity to address the planning commission regarding critical concerns about the proposed Sonic Restaurant.”

It’s too late to try that method to thwart Sonic, because Planning’s work is done. The only permit still awaited in the approval process is a flood plain permit, and that is issued, but not printed.

The next step leading to a Sonic being built in Danbury will be the city issuing building permits, such as a grading permit or a foundation permit, but they have not yet been sought.

City officials say this dispute, as far as they knew Thursday, was between the landlord and tenant. It didn't involve Danbury or even Sonic.

“I don’t even think Sonic is a party to this suit,” said Danbury Mayor Mark Boughton. Sonic and the city would be third and fourth parties to this suit if it is filed and if it grows beyond the landlord/tenant stage. “I want my Sonic. I want happy hour.”

Apparently Sonic’s happy hour at 2:30 p.m. offers slushies and shakes at half price. Sonic is a drive-up hamburger joint that reminds people of a 1950s drive-up restaurant experience.

“This is a landlord/tenant problem,” Boughton said. “Usually people figure out a way to drag the city in, but not yet in this case. This is the first I’m hearing about it.”

When the HB Nitkin Group told Xpect about the Sonic proposal in a letter dated April 19, 2011, Nitkin wrote, “After the proposed Sonic development, our property will have a total of 251 parking spaces, which is 20 more spaces than zoning requires for the property.”

Another of Donahue’s problems with the restaurant is that letter. Donahue wrote that was the first time his client, Marc Glassman Inc., first about Sonic. Donahue observes the late date meant the proposal had already won most of its city approvals.

 “We believe that this late disclosure was done purposely in order to prevent Xpect from objecting to the proposal,” Donahue wrote in a letter mailed to the Planning and Zoning Department on May 16.