This is a printer-friendly version of an article from Zip06.com.
10/27/2021 12:00 AMNorth Branford is asking the state's Supreme Court to review the Appellate Court's September 2021 overturn of a 2018 Superior Court decision upholding the zoning commission's denial of a site plan application for a 60,000-gallon bulk propane facility at 40 Ciro Road.
As previously reported (see related story) in a decision released Sept. 14, the state Appellate Court sided with site plan applicant, 2772 BPR LLC, an entity formed by J.J. Sullivan Inc. of Guilford; ordering the Planning and Zoning Commission (PZC) to approve the site plan. The plan involves installing two 30,000 bulk propane storage tanks at 40 Ciro Road as part of a distribution facility for bulk propane deliveries by J.J. Sullivan Inc.
In the Oct. 25 filing, the PZC asks the Supreme Court whether the Appellate Court improperly concluded the PZC could not deny the site plan application, as the record shows the commission included a site-specific concern among reasons for denying the application. The PZC's concern was about "... limited access to and from the subject property in the event of an emergency - a concern illuminated by Plaintiff's site plan application which showed only one access point for both entry and exit," the PZC stated in its Oct. 25 filing, submitted by the Town's attorney office of Marino, Zabel & Schellenberg (Orange).
Among its bases for certification, the PZC also noted to the Supreme Court, "...this is an issue of great public importance because the Appellate Court's decision severely undermines the ability of local commissions to address emergency access issues that only can be addressed once a site plan is presented."
The Appellate Court, in its Sept. 2021 ruling, reasoned that "the commission's concerns were not site specific and, instead, presumably also applied to other properties on Ciro Road," according the PZC's Oct. 25 filing. The PZC additionally points to 2009 case law involving the Supreme Court's determination that "...a commission's decision on a site plan application must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." The PZC further notes "...the Appellate Court's reasoning essentially disregards that premise, in violation of well-settled law."
In March 2017, the PZC denied the application by a vote of 3-2 citing three zoning codes, including one involving access (41.2.3), noting Ciro Road is a dead-end street which limits access both in and out of the area during an emergency. The PZC also denied the application as it didn't conform with the Plan of Conservation (41.2.1) and because the proposed project is unable to protect property values of the neighborhood (41.2.2).
As the PZC's use of 41.2.3 was based on the site plan's single entrance and exit access and its repercussions in the event of an emergency evacuation, "...the "Appellate Court misapplied precedent, thereby resulting in a decision that severely undermines the ability of local commissions to consider emergency access issues that can only be addressed once a site plan is presented," the PZC noted, in its Oct. 25 filing with the Supreme Court.
In asking the Supreme Court to review the decision, the PZC also pointed to two earlier state Supreme Court decisions; one from 1992 in which the court found a commission may consider "...site specific concerns that are related to a permitted use," and another from 2007 where "...the court confirmed that a commission can consider existing traffic congestion for the 'site-specific purpose of addressing traffic flow within the site and entering and exiting the site.'"
The PZC also summarized that, during the March 2017 PZC review and public hearing of the application, "...many neighbors voiced strong opposition to the application. This opposition focused on the concern that the proposed facility presents a potentially grave danger that could not be contained or satisfactorily ameliorated if there were a fire, leak, natural disaster, major accident or terrorist attack involving the propane tanks."
The PZC now awaits a response to its Oct. 25 request, which asks the Supreme Court to grant the PZC's Petition for Certification and review the decision of the Appellate Court.