At Thursday’s P&Z meeting, the Middlebury Small Town Alliance withdrew its application for a one-year moratorium on distribution facilities of any size and warehouses greater than 100,000 SF. There were two main factors driving this decision: first, the site plan application submitted for 764 Southford Road on August 29th would not be subject to a moratorium, so the rush to get a site plan in to beat the moratorium deprives us of the benefits of a moratorium. Second, the reports presented by the Town’s Attorney and consultant Town Planner raised serious concerns about the how the moratorium, if approved, would be implemented:
- The Town Attorney confirmed that “the Commission is in the process of updating the current regulations and public input would be timely.” If this process has already started, when was the public going to know about it? Who is doing the updating and where is this discussion taking place? There have been no P&Z workshops with the discussion happening in the public eye, so how could regulations be updated without the P&Z Commission first asking how the regulations should be updated?
- The Town’s consulting Town Planner, Hiram Peck, concluded his report on the moratorium with the following: “The planning study should be a transparent process. However, the cost of the process needs to be established and funded very early for the process to be successful. The party/parties who expect to participate in the process need to fund the effort.” So the MSTA asks for a moratorium (a “planning pause” to use Mr. Peck’s words) so the commission has time to thoughtfully consider and tighten the regulations to make it clear that distribution centers are not welcome in Middlebury, the town is required to have public participation in the process, but the MSTA has to pay for the Commission to do its job? That’s a legitimate function of government that cannot be passed off to private parties.
P&Z Chairman Terry Smith’s comments after the withdrawal fully cemented the decision. He stated he was in favor of the moratorium because even though it wouldn’t have applied to the new application on Southford Road, there are other properties in town where the public’s input would be necessary moving forward, and he wanted to work with the MSTA as part of that process. Here’s the problem with that statement: Chairman Smith didn’t say he wanted to have a honest and transparent discussion about whether or not distribution facilities belong in Middlebury, he said he wants to work on what those sites look like, which means he has already decided the use that currently isn’t authorized in our regulations is going to be allowed. First Selectman Ed St. John has mirrored this thinking from the beginning. He has repeatedly asked the MSTA for our list of concerns so the developer can address them, which deliberately misses the point. The conversation this town wants to have is about whether or not this kind of development even belongs in Middlebury, not what kind of trees should be planted to block the view once this project is built. We don’t want to talk about site plan parameters because there shouldn’t be a site plan option for this kind of development.
- What can we do? We’ll be petitioning under Conn.Gen.Stat. §8-3(b) to force the Planning and Zoning Commission to a super-majority vote on the zone change application to raise the height from 35’ to 44’ in the LI-200 zone. Any abutting property owner within 500’ of the LI-200 zone can sign the petition, and we need 20% of the lots within five hundred feet in all directions of the LI-220 zone. Once we gather these signatures, instead of a simply majority to approve the proposed height change, the P&Z Commission will need a 2/3 vote to approve.
- Second, we can oppose the town accepting the proposed conservation easement for the 35 acre Lot B. The former Timex property was recently split into two lots to help the developer avoid the provisions in the state budget implementor bill. Specifically, the new property lines were drawn to exclude wetlands from the parcel the distribution center would be built on so that there are now less than 5 acres of wetlands and the state provision no longer applies. The fancy PR site for Southford Park calls this “reimagining 77 acres in Middlebury,” and claims this is "groundbreaking industrial flex space dedicated to merging economic growth and environmental stewardship in Middlebury, Connecticut.” So, if the town accepts this easement, it will be condoning the developer’s side-stepping of the protective intent of state law and forfeiting real estate taxes on 35 acres to ease the developer’s tax burden at the expense of Middlebury residents. While one can argue that this “reimagining” was legal, one can’t argue with the fact that “industrial flex space” is not a defined or authorized use in Middlebury’s Zoning Regulations.
The next tune you will hear from town officials will be familiar: "if an application meets all the requirements in our regulations, we can’t deny it or we’ll get sued." Funny thing is, Middlebury’s regulations seem to be flexible enough to allow whatever interpretation is necessary to approve just about anything these days (except, of course, drive-thru coffee shops).
Link to Hiram Peck's Planning Consultant Report on the Moratorium
Link to Dana D'Angelo's Legal Opinion
