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09/11/2017 06:42 AMIn response to citizens' letters discussed on Sept. 7, Branford's Planning and Zoning Commission (PZC) has decided to explore whether an option exists to consider rescinding a July 27, 2017 vote. The vote granted a one-year extension to submit a site plan to develop I-95 Exit 56 property originally approved in 2015 for a Planned Development District (PDD) master plan to be anchored by a Costco store.
The PZC ok'd the master plan on July 30, 2015. That started the clock on a 24-month deadline, expiring July 30, 2017, for a site plan application to be submitted, or the approval would be "null and void" according PZC regulations. The master plan approved by the PZC in 2015 incorporated development on three continguous parcels making up 44 acres on the east end of town, including a 158,000 square-foot Costco wholesale store, 16-pump gas station and seven additional buildings accessible from East Main Street (Route 1) and from East Industrial road off Exit 56.
In January 2016, the Costco portion of the site plan was submitted to the town's Inlands Wetlands Commission (IWC). The IWC then incorporated two additional site plans submitted from applicants to develop other areas of the parcel, creating a three-part application. The IWC application review drew two intervening parties, Branford Citizens for Responsible Development (BCRD) and Branford Land Trust. In April 2016, citing concerns with actions of the IWC during the site plan review process, Costco withdrew its site plan application. The two other site plan applications were then also withdrawn.
Over a year later, at a special meeting of the PZC on July 27, 2017, attorney Kevin Crusadean (Milford), representing two property principals, Orchard Hill Partners and 595 Corporate Circle, came before the current PZC to request a one-year extension to submit a site plan connected to the master plan approved in 2015. The extension was then granted by a PZC vote of 3-2, with PZC chairman Chuck Andres and commissioner John Lust voting against.
The tight vote followed a debate during which the PZC requested input from Branford Town Attorney Bill Aniskovich. The PZC's questions hinged on whether the PZC had the ability to grant the one-year extension; because there is no PZC regulatory language specifically permitting a request; but there is also no language in the rules which would prohibit such a request.
The Zoning Regulation which pertains to the 24-month window of expiration, located in Section 5.4.D, specifies a site plan application must be submitted for approval within 24 months of adoption of the master plan, or the master plan "shall become null and void" if the site plan isn't approved within that timeframe.
On July 27, Aniskovich advised the PZC not to grant the extension.
"They asked a specific question... 'Do we have the legal authority in the regulations to grant an extension of the 24-month period?' My answer to that legal question was 'No,'" said Aniskovich, speaking to Zip06/The Sound shortly after the July 27 vote.
"That being said, there is also nothing in the regulations that prohibits them from granting the extension," Aniskovich said.
According to the minutes of the July 27 meeting, Crusadean noted for the PZC that the commission has "discretion in deciding whether to grant this extension or not." The minutes also described Aniskovich as then further explaining, "... the Commission's authority to interpret its own regulations, but distinguished interpretation from 'reading in' information and process for which there was no provision in the text." Aniskovich also cautioned the PZC that granting the extension without the regulatory language could create issues for any future development on the property arriving as part of the one-year extension.
"It was my belief, should they grant the extension absent authority, they are creating grounds for appeal not only if its decision to extend, but potentially for any approval that was granted pursuant," Aniskovich told Zip06/The Sound.
The citizens' letters submitted to the PZC on Sept. 7 were from Branford residents who are also BCRD members, including Elizabeth Alcorn, Penny Bellamy and Kate Galambos. In addition to other comments, their letters all cited Zoning Regulations including 5.4.D.
Alcorn's letter also brought up the timing of the request, concluding the July 27 PZC vote should be "null and void" because, "...the applicants request for an extension was untimely, and regulations governing the PZC prohibit granting an extension." Additionally Alcorn, as did Bellamy and Galambos, cited another section of the town's Zoning Regulations, Section 2.1.B, which define regulatory use of the word "shall." Galambos wrote, in part, "...to be clear, let us review how Section 2.1.B of Branford's Zoning Regulations define the word 'shall': 'The word 'shall' is mandatory and not discretionary."
Bellamy, an attorney who formerly represented the Town of Branford during the DaRos administration, addressed her letter to PZC chair Andres, concluding that, "...by acting without authority, your Commission has set up a conflict between the plain language of your regulations [5.4.D] and the July 27, 2017 vote to extend the period for compliance. Please provide an opportunity for the Commission to rescind its vote of July 27."
Following the letters received on Sept. 7, the PZC decided to reach out the Town Attorney to "...see if they have the authority" to consider rescinding the July 27 vote, said Town Planner Harry Smith. The PZC also planned to notify the master plan applicants of the decision to explore whether the PZC has any authority to rescind such a vote, said Smith.