On December 7, 2023, the day the
Planning & Zoning Commission closed all three public hearings for
the Southford Park applications, Attorney Fitzpatrick finally gave the
Commission a Statement of Use that is expressly required
as part of the site plan application: "The application proposes the
construction of two industrial buildings on the property for WAREHOUSING
use in the LI 200 zone. The proposed use is an expressly Permitted Use
as specifically set forth in Section 42.1.5 of the Middlebury Zoning
Regulations. Specifically, the intended use is for a warehouse facility.
There is no intention to establish a “last mile” distribution facility
on the property or sub-same day fulfillment center on the property."
That
same evening, two reports from the Town’s consultant town planner,
Hiram Peck, were entered into the record, but never discussed. The
public never saw these reports or had time to comment on them before the
public hearing was closed. And, it appears that Hiram Peck never saw
the Statement of Use either (how could he if the Commission received the
statement the same day it closed the public hearing?).
Please
notice that Mr. Peck specifically mentions “an actual warehouse as
defined by the current zoning regulations.” In its decision resolution,
P&Z references half of the definition of a warehouse (on-site
manufacturing) but then dismisses the regulations this way: “The
specifically permitted “Warehousing” use provided for on the Site Plan
is not defined in the Regulations. Under the authority of Regulations
Section 9.1, the Commission makes the determination that the proposed
Warehousing use set forth at Section 42.1.5 is permitted and is
consistent with past determinations and interpretations of standalone
warehousing (approved warehousing development that does not include a
manufacturing component exist throughout Middlebury)…” So Fitzpatrick
says the use is what is defined by our Regulations (which is no
definition), and then P&Z agrees that because there is
no definition, the definition is what Fitzpatrick wants it to be. During
this process, the Commission completely ignored this express prohibition
in Section 6.1.4: “The use or occupancy of a lot as a trucking
terminal, except for the transportation of goods manufactured or
assembled on the premises.”
Bottom
line interpretation? The Commission may have wrongly interpreted its
regulations in the past, so it has to continue to approve projects that
violate Middlebury’s Zoning Regulations in the future. And, using
the words “expressly Permited Use” repeatedly means that whatever you’re
saying should be believed.
Here’s our top 5 favorite Hiram Peck quotes:
5.
"No clear evidence as to the current state of the art “warehouse”
operation had been presented by the applicant.” (Hirem Peck report dated
10/30/23, P&Z received 12/7/23)
4.
“It is unclear, at best, how the building will be used. There are many
variations of the possible use or uses the building could be put to, If
the buildings are to be put to use as a fulfillment center, that is very
different than a distribution center. If the building is to be put to
use as an actual warehouse as defined by the current zoning regulations
that too is a different use. Other uses that could be contemplated might
be a sorting center, a delivery station, a freight and cargo service.
Each one has a different character, different vehicles, different hours
of operation and different potential impacts on surrounding areas. This
detailed narrative has not been provided, so the Commission has no idea
of the potential impacts whether positive or negative.” (Hirem Peck
report dated 10/30/23, P&Z received 12/7/23)
3.
“The Commission, based on the information submitted, has no basis to
determine if the application consists of a permitted use or not. A clear
definition of “flex space” has not been provided as part of the
application.” (Hirem Peck report dated 10/30/23, P&Z received
12/7/23)
2.
“The Commission, in order to cast a knowing vote on these applications
should understand exactly what is being proposed. This is true for
several reasons, including knowing what is actually being proposed and
being able to reasonably accurately assess the potential impacts of the
application.” (Hirem Peck report dated 12/3/23, P&Z received
12/7/23)
1.
“The list of specific potential (similar) uses and their resultant
impacts is long and significantly different. The Commission should be
clear about what is being proposed so that any impacts, either positive
or adverse can be known prior to acting on these applications. Thus the
definition of the exact proposed use is essential prior to approval.”
(Hirem Peck report dated 12/3/23, P&Z received 12/7/23)
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