Hearing on 9-15 Albany to continue Jan. 19

By John Fitts

Staff Writer

CANTON ­— The Canton Planning and Zoning Commission is slated to continue its public hearing for proposed earthwork and grading activities at 9-15 Albany Turnpike on Jan. 19.

The 26-acre property, which contains a prominent traprock ridge, has been the subject of much controversy over the past year plus. In June of 2021, after a long and complex series of hearings, the Canton commission denied a proposal for an EV showroom, convenience store and fueling station at the site. While most of the acreage on the parcels is in Simsbury, much of that development would have been in Canton. The commission’s main reason for denial was that the project – which proposed removing as much as 118,450 cubic yards of material, mainly from the traprock ridge, – did not strike the balance between development and natural resource preservation noted in the town’s Plan of Conservation and Development.

The development team for principal property owner, Litchfield based developer Mark Greenberg of 9-15 Albany Turnpike, LLC, has more recently filed for earthwork and grading on the property, which they contend could support an access way on the property some time in the future.

The plans call for the removal of 17,659 cubic yards of material – or more than 22,957 tons – or 957 truckloads - of material from the site. Approximately 13,000 cubic yards of that would take place in Canton.

The application estimates a site work period of some 300 days, with approximately 90 estimated for material removal.

“Blasting will not occur daily for consecutive weeks, but rather as required, to include intermittent time for standard excavation and handling of materials such as sorting, stockpiling, and exporting,” the application states. “For the purposes of this project, we assume two to three blasts will take place per month during rock removal activities. Assuming 90 days of construction are dedicated to the export of material throughout the twelve-month construction period, an average of approximately 10-11 trucks per day will be entering and be exiting the site, on days that export operations occur.”

While the development team has noted the potential for some type of multi-family housing in Simsbury, the latest application, they said, does not include a formal request for a “use.”

The applicant team speaks

At the opening of a public hearing, Jan. 5, both Kevin Solli of Solli Engineering and attorney Timothy M. Herbst of Marino, Zabel & Schellenberg, addressed the commission on the plan.

“We maintain and Mr. Solli will opine, that the proposed earthwork operations on this site are the first necessary step that will be required to prepare this site for future development,” said Herbst, who noted that while the public and commission members were wondering what would eventually go on the site that question would be answered later, with review by agencies in Simsbury and Canton and the state Department of Transportation.

“So, in essence, you are going to be having land use and regulatory bodies, advisory bodies, in not one but two municipalities and a state regulatory agency providing several, several layers of review with what will happen in the future use of this property. Tonight, this application is the first step in that process.”

Herbst maintained that the site plan filed, absent a definition in the town’s regulations, conforms to the definition of one laid out in Black’s Law Dictionary and the development team contends the plan is responsive and conforms to the town’s earthwork and grading section of its zoning regulations.

“Previous applications included proposal for uses and buildings and a substantial amount of earthwork along the corridor within this area,” Solli said. “This application is much more modest in its overall scope and proposal. To be clear, we are not proposing any uses as part of this application, we are not proposing the construction of any buildings as part of this application. We are simply proposing to conduct some earthwork on this property in order to create an access drive to reach and use the 18 acres of land in Simsbury, which will obviously be subject to additional permitting requirements in that town but as a first step we wanted to come to the town of Canton, and the Planning and Zoning Commission, to pursue the rights to do this minor earthwork operation on this property to accommodate a future potential driveway for a future use.”

Solli said the application is “straightforward and simple,” and he has indicated that work would commence once a complete plan in place.

During the meeting, Herbst noted use of language such as “any lot” in earthwork and grading and “use or activity” in many of the special permit criteria.

Selected commission questions

But the application could be facing an uphill battle with the commission. In the months leading up to the hearing, during which one application was withdrawn and a similar one filed and hearing dates were delayed due to legal notice and other issues, there has already been much correspondence over land use issues, such as what constitutes a “use” and whether one is required for the earthwork and grading, which would include blasting.

On Jan. 5, in questions to the applicant team, commission members noted, in their views, many potential issues with the application, such as the concept that earthwork and grading is an accessory element in zoning, that special permit criteria cannot be fully evaluated when the full impact of the activity is not known, and that the plan might not align with the town’s form-based Village District code that encompasses the site.

Chairman Jonathan Thiesse noted, for example, the Sept. 23, 2021 memo from the commission’s attorney Kenneth R. Slater, Jr. of Halloran Sage, which said, in part, “under Canton Zoning Regulation, as is the case with any permissive zoning scheme, any improvement of property must be related to a use that is permitted in the zone. Driveways and roads are not an independent use authorized under the Zoning Regulations but are, instead, authorized accessory improvements related to a principal use.”

While Herbst reiterated his point that the application is not seeking a use, Thiesse noted some difficulty viewing the regulations in the same way as the applicants. He also asked how the commission could evaluate special permit criteria, such as one section that speaks to suitable transportation conditions on town roads – noting that any future access road would connect to Brass Lantern Road – when the full impact was unknown.

Also, since a future site plan application could simply involve administrative approval, approving the earthwork and grading plan might essentially allow the developers to sidestep such special permit evaluation, some commissioners said.

“Those parts of our site plan criteria that are associated with use would essentially be sidestepped or bypassed by this process if we were to approve this just based on the application that’s submitted and the interpretation [the development team] is asking us to take here,” Thiesse said.

Commissioner Michael Vogel also asked the applicant about the special permit criteria, which he said “to some extent is a discretionary cost-benefit analysis.”

“We would have to look at the costs and benefits of this proposal in evaluating the special permit criteria and my concern or my question is if your position is that you’re not proposing a use as part of this application, how are we able to evaluate the benefits of this proposal and how are we able to evaluate the special permit criteria?”

While Herbst began the meeting touting the Plan of Conservation and Development’s, which notes the need for economic development, and its identification of the property as an opportunity site, some commission members also felt that the proposed grading and the inclusion of a retention pond near the front of the property and some of the grading features take up much of the flat land, reducing development potential under the form-base code.

“It seems to me that everything’s that being proposed here is actually reducing the potential for future development on this site,” Thiesse said.

At another point in the meeting, commission member Elizabeth Vinick circled back to one special permit criteria #4 which covers “suitable location for use with respect to” areas such as lot size, activity intensity, harmony with areas streets and neighborhood impact.

“I specifically wanted to understand how this discussion that we’ve been having ties back there and more specifically how the nature and intensity of the activities proposed in connection with the use is able to be evaluated at this time.”

“So, I would take the position commissioner that you can’t’ look at 4 in isolation. You have to look at all nine and you have to have the discretion under your standards to use all nine to determine the viability of an application,” said Herbst, who also pointed out the that the other criteria uses wording of “use or activity.”

Herbst contended the commission was too focused on the future when the application meets the standards, also saying the special permit criteria, when viewed in totality, is also met.

“Based on what I have indicated to the commission on the record, what Mr. Solli has indicated to the commission on the record, when you look at all nine standards in total, I believe we have more than met our burden of demonstrating that we meet the criteria set forth.”

At other points in the meeting, he alleged the comments of the commission and other comments by town officials outside of the proceedings potentially compromised his client’s “fundamental fairness.”

Another question from commission alternate Aimee Hoben referenced the controversy over the viewspace coming into Canton that would have been greatly altered under the EV proposal.

“That view, the rock traveling east to west is not proposed to be touched or manipulated in any way shape or form as part of this application,” Solli said.

“From my perspective that’s a really positive change from this application as compared to the last one and I think that it certainly does reduce the intensity of what’s being proposed in a favorable way,” Hoben said. “I think the thing that we’re all struggling with is it sort of feels like we’re not being provided a complete picture of what’s being proposed. From my perspective, conceptually I feel that if an application were brought forward to put a road in in a way as you’re proposing now which did not impact this gateway into Canton and it was a residential subdivision which was favorably received by Simsbury, I would personally be inclined toward favorably considering that. I think the commission’s being put in a very hard position.”

Further concerns

In his comments to the commission, Neil Pade, the town’s director of Planning and Community Development, said he had a better understanding of the applicant’s approach after hearing their presentation, and noted that the question of access was a true “threshold” for the developer. But Pade also raised several concerns with the development team’s interpretation of the regulations, the POCD and more. He reiterated some of them in a staff memo prepared for the Jan. 19 meeting, stating in part, “Staff does not find the separation of the site development plan into phases, such as starting with just a grading plan, is an advisable approach as it raises more questions than answers and does not lead to a determination of compliance. In the construction of the Canton Zoning Regulations grading is an accessory element of the site development submission and review process. Full site plan review and approval is required as part of the special permit evaluation. The evaluation of the proposal under the Village District the property is located in is also required. The November 15th, 2021 staff memorandum explains the construction of the regulations relative to Site Development Plans and Site Development Plan Applications. The regulations make it explicitly clear what constitutes a site plan and site plan application, when one is required, and what they entail within the Town of Canton.”

Public Comment

Several members of the public have written in opposition of the project and the Metropolitan District Commission has written, as it did in the EV application, expressing concern about its water main in Route 44.

Additionally several members of the public also had the chance to speak at the Jan. 5 meeting, which last three and a half hours.

“I’m concerned by the developer’s refusal to state the intended use of the proposed grading and access road,” said Canton resident Hayley Kolding. “They claim that use is irrelevant but our own town regulations represent our town character, our values, our health, our wellbeing and this development, in my perspective, threatens all of those. I followed Mr. Herbst and asked myself what might be the merits of this proposal, while it offers to mar a beloved and ecologically important resource with no regard to public health. In that sense I suppose I would agree with Mr. Herbst that the proposal is useless. “

Susan Masino of West Simsbury also spoke, stating, “I really want to second the idea of perhaps the ridge could be preserved and there could be appropriate development on route 44 and I think that would be the best of all options because being allowed to develop Route 44 appropriately is what I would consider fundamental fairness. Being allowed to blast an access road in an imperiled habitat I don’t think is fundamental fairness to assume that should be a property right. I think that appropriate development on 44 would have a lot of merits. Developing a ridge and what is considered imperiled habitat type in Connecticut would have a lot of demerits.”

Hearing continued

The commission kept the public hearing open, specifically to accept a planned technical review of the application and to take comments on that or any other new information presented. The virtual meeting is slated for 7 p.m. Jan. 19. That evening the commission will also hold a hearing on its Affordable Housing plan. More information and a video of the 3 and a half hour meeting, can be found at https://townofcantonct.org/agendas-minutes-meetings

Those who want to review documents in depth can find the meeting packets for commission members section of the page, click on 2022 and the appropriate date.