For Immediate Release:
The Middlebury Small Town Alliance, Dana Shepard and William Giuditta, and Johnathan and Rosalie Grieder have filed an appeal with the Waterbury Superior court challenging the Middlebury Planning and Zoning Commission’s decisions to approve a site plan permit, text amendment, and grading and excavation permit at 764 Southford Road, Middlebury, CT. The controversial redevelopment of the former Timex World Headquarters into a 670,000 SF distribution facility is universally opposed by Middlebury residents, who see the destruction of an award-winning architectural gem and its surrounding natural landscape as a waste of resources and the exact opposite of the responsible environmental stewardship statement Timex made when it designed the building in the early 2000s.
“Once again, Middlebury residents have to step up and hold our local officials accountable for making decisions that violate the letter and spirit of our regulations,” said Jennifer Mahr, President of the Alliance. “Three Commissioners decided to ignore multiple concerns raised by the public, expert witnesses, and Middlebury’s Economic Development Commission to approve applications that clearly did not meet our standards.”
The appeal identifies the illegal constitution of the Commission, with 6 Republicans, 1 Unaffiliated, and 1 Democrat, as violating minority representation rules. On January 4th, the night of the deliberation and decision, the Chairman exacerbated the lack of minority representation by seating a Republican alternate in place of a Democratic regular member vacancy. This fifth Republican voted in favor of the applications, making the vote 3-2 for approval.
Mahr, recently elected to Middlebury’s Board of Selectmen in a landslide victory, raised her concerns via email to Town Attorney Robert Smith over the legality of the Town Charter’s consideration of regular and alternate P&Z members: “I maintain my challenge that the Town Charter cannot trump State law regarding minority representation. The charter can require MORE minority representation, but it cannot require less.” State law mandates a maximum of five members from one party on a board of eight members, but Middlebury’s split of its eight member board into a board of three and a board of five allows for an additional Republican to be seated, for a total of six from one party.
Mahr requested Smith reach out to the Attorney General or Secretary of State for further guidance, “The only purpose of alternates in this case is to fill in for absent regular members, and the alternates are not empowered to act on their own as group. Therefore, it would seem that the purpose of the alternates is directly tied to maintaining the proper minority representation balance of the board as set by the appointments of the regular members of the board. There should be no discretion on the part of the Chair to alter this balance…”
The lawsuit also faults the Commission for intentionally and illegally circumventing state statue §173 of Public Act 23-204 by allowing the applicant to split the project into two parcels in an attempt reduce the amount of associated wetlands on one of the parcels. Keith Ainsworth, attorney for the plaintiffs, noted in the complaint: “The illegal circumvention of §173 of Public Act 23-204 was compounded by the fact that both the Middlebury Conservation Commission and the Planning Zoning Commission approved the same project conditioned upon the Applicant creating a conservation easement on Parcel B of the project, a parcel further made a part of the project by virtue of access easements connecting the two.”
Bill Giuditta, one of the plaintiffs, expressed his outrage at the Commission’s failure to represent the clearly expressed wishes of Middlebury residents: “From the beginning, our First Selectman told us to ‘trust the process,’ but look where that got us? Our Planning and Zoning Chairman wrote to the House Minority Leader in June, before the Southford Park applications were even before the Commission, claiming only a small group of people opposed the project, and urging the State to ‘let us do our job.’ The November election and a 45% voter turnout provided a clear directive to our town officials about what the people think of this kind of development in Middlebury. Yet ‘trusting the process’ resulted in the Chairman justifying his vote by saying he personally was for the project and that the Commission had previously approved warehouse projects that appear to violate Middlebury’s Zoning regulations. Not one mention of his obligation to represent what the people of Middlebury want.”
“I am most disappointed by the town’s obvious efforts to shut down public dissent and to approve this project no matter what,” said Dana Shepard, co-founder of the Middlebury Small Town Alliance and one of the plaintiffs. “The Commission ignored the clear warnings about the inadequacies of the application from its own consultant town planner as well as the Economic Development Commission, militantly policed residents with a buzzer to limit public comment to three minutes, closed the public hearing the night multiple reports were submitted so that no one had time to review and comment on these new reports, and then stationed a uniformed police officer at the door the night of the deliberation and decision.”
Shepard went on to say, “When challenged on this decision at a Board of Selectmen meeting, Police Chief Deely said he checked the MSTA’s social media and he was justified in sending an officer because ‘lots of cars were in the parking lot.’ Since when does publicizing a public meeting on social media constitute a threat requiring police presence? There were the same amount of people at the January 4th meeting as have attended P&Z meetings since this summer."
Beyond concerns over minority representation and the impermissible approval of this project as required by state law, the plaintiffs are confident that Middlebury’s Zoning Regulations do not permit the kind of use proposed by the Southford Park applications. “The Middlebury Small Town Alliance has asserted from the very beginning that Middlebury’s regulations clearly require associated on-site manufacturing for any warehouse or distribution facility use. The definition of a warehouse and the prohibition against trucking terminals are right there for anyone to see, and the Commission cannot justify ignoring these provisions because a handful of town officials are determined to approve this project over everyone’s legitimate concerns“ Mahr concluded. “It is the obligation of town officials, appointed or elected, to represent the people’s interests, especially when the people are very, very clear about what those interests are. Yet just six individuals, three on the Conservation Commission, and three on the Planning and Zoning Commission, made a decision that will forever change this town. That’s unacceptable, and so the people will continue the work to hold our town accountable.”
The Alliance recently filed a 35-page brief for its appeal of the Conservation Commission's wetlands approval, with the town and applicant's briefs due in March.
