Tuesday, May 17, 2022

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North Branford Ends Legal Fight of Bulk Propane Court Order; Citizens' Injunction Case Goes Forward

With the state Supreme Court's December, 2021 decision declining the Town's petition to review an Appellate Court decision, North Branford's town attorney said the Town has "exhausted its legal remedies" to fight a court order compelling the zoning commission to approve a 60,000-gallon bulk propane facility at 40 Ciro Road.

While the site plan application for JJ Sullivan Inc. (Guilford), doing business as 2772 BPR LLC, must be approved when the court order is received by the town's Planning and Zoning Commission (PZC); now, a long-standing citizens' case, pending during the 2772 BPR LLC vs. Town of North Branford appeals process, is going forward to seek a court injunction to prohibit bulk propane storage at the 40 Ciro Road site.

North Branford Citizens Against Bulk Propane Storage (NBCABPS) v. Town of North Branford, et al, was first filed in 2017 with New Haven Superior Court. As of Jan. 21, 2022, the latest action in the case is the court's scheduling of a Feb. 18, 2022 status conference. NBCABPS is represented by North Branford attorney Peter White.

The citizens complaint goes back to the early stages of the process. The discussion on bulk propane at 40 Ciro Road began in 2014 when JJ Sullivan, Inc., doing business as 2772 BPR LLC, applied to amend the zoning regulations at 40 Ciro Road when the sale of the property was pending from then-Town Council member Donald Fucci to JJ Sullivan.

Once those regulations were amended, 2772 BPR LLC's application stalled when the town's Inland Wetlands & Watercourses Agency (IWWA) failed to assemble a quorum to vote on the application in 2014; the proposal then went to the state Department of Energy & Environmental Protection (DEEP) for review in January 2015. At that point, the North Branford citizens action group formed and hired White.

In March 2015, the Town amended its zoning regulations to prohibit bulk propane storage throughout the town. Nearly two years later, in February 2017, DEEP told the town to issue the wetlands permit, which moved the application ahead for PZC review.

In March 2017, NBCABPS filed the lawsuit against Fucci, the Town of North Branford, and JJ Sullivan, stating that because Fucci was on the Town Council at the time of the amendment, the regulations should be invalid as he had a conflict of interest.

Later that month, the PZC denied the propane storage proposal based on its 2015 regulations.  2772 BPR LLC appealed the decision to the New Haven Superior Court. On Dec. 18, 2018, the court upheld the PZC decision denying the bulk propane site plan application.  Next, 2772 BPR LLC appealed the Superior Court decision to the state Appellate Court. On Sept. 21, 2021, the Appellate Court sided with the plaintiff, ordering the PZC to approve the site plan. In a final effort, on Oct. 25, 2021, the PZC petitioned the state Supreme Court to review the Appellate Court decision. Early in December of 2021, the PZC was notified that the Supreme Court had declined review of the petition.

Speaking at the Jan. 18 Town Council meeting, attorney Marino summarized that, based on the Supreme Court not taking up the review, "...the zoning commission will be compelled by court order to approve that facility."

"We are presently examining with the commission what we can do to protect any concerns, and we'll continue to explore those options. But at this point, the town has exhausted its legal remedies," Marino said.

The PZC is awaiting the process involved as the court renders its decision downward, Marino explained, "...from the Supreme Court on down to trail court, to the PZC."

Saying on Jan. 18 it could be "anywhere from two weeks to two years," before the decision reaches the PZC, Marino added, "...I think it's going to be longer than two weeks and less than two years."

On Jan. 6, the PZC reviewed the Supreme Court response with the town attorney in executive session; as noted in a "Statement Regarding The Court's Order Compelling the Zoning Commission to Approve a Propane Facility on Ciro Road," which was prepared for the Jan. 18 Town Council meeting (see related file).

Speaking at the Town Council meeting Jan. 18, Mayor Jeffrey Macmillen said the Town Council will update residents as more is learned.

"We will advise the town as we will advise ourselves," said Macmillen.

A past report by The Sound's Correspondent Jenn McCulloch contributed to this story.


Pam Johnson covers news for Branford and North Branford for Zip06. Email Pam at p.johnson@shorepublishing.com.

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