Smart Growth for Vernon, CT
McCoy supports zoning change to ease restrictions around exit 67

By Suzanne Carlson
Journal Inquirer
Published: Monday, October 11, 2010 12:28 PM EDT

VERNON — Mayor Jason L. McCoy again has urged the Planning and Zoning Commission to ease restrictions on a parcel off Interstate 84 exit 67 to make it more attractive to developers.

But his opinion has angered some who believe his comments are an abuse of power borne out of ignorance about the parcel’s history.

The property, a 40.5-acre parcel owned by Lee and Lamont real estate with frontage along Reservoir Road, was the site of a controversial 2003 application for a 186,000-square-foot Wal-Mart that was rejected by the Inland Wetlands Commission because of its potential impact on the Tankerhoosen River.

Many seem to have forgotten what happened after that decision, and several files containing documents relevant to the application reportedly have been lost.

Though Town Planner Leonard K. Tundermann has said that Lee and Lamont filed suit against the wetlands commission to appeal its decision, the litigation actually was against the PZC for a 2005 zoning amendment that instituted a variable setback restriction based on the size of a building’s footprint.

The setback restriction, which was twice amended in 2007 to address parking requirements and reduce the front buffer requirement, incrementally increases the rear and side yards for building footprints of more than 40,000 square feet, with a maximum of 200 yards of buffer area.

At the time the PZC was the entity filing for the restrictions to be put in place, based on recommendations from a Planimetrics consultant and public comment that emerged during three meetings on the subject.

Both then and now, proponents of the restrictions say they are necessary to protect the headwaters of the ecologically sensitive Tankerhoosen River, but opponents say they hinder development of the parcel and were based on unfounded prejudice against big-box retail.

Lee and Lamont first tried to fight the amendment in Superior Court, arguing that the amendment “will prevent the plaintiff from fully developing its property,” causing the owner to “suffer economic loss and damage,” according to the May 2007 decision, which sided with the town.

“The court finds that the record fails to demonstrate that in amending the Vernon zoning regulations and Vernon zoning map, the commission acted arbitrarily, illegally, or in abuse of discretion,” said Judge Patricia Lilly Harleston, who wrote the opinion.

Lee and Lamont then appealed to the appellate court, claiming impropriety when a commission member sent a memorandum to the PZC after the public hearing had closed. It also argued that the PZC did not have the authority to institute a 200-yard buffer next to a highway.

The memorandum was found to be essentially a summation of facts, however, and the court disregarded both that and the claim about the buffer, affirming the Superior Court’s previous dismissal in February 2009.

Even though the town fought to support the restrictions only a few years ago, it’s now the town that is fighting to undo those restrictions, with McCoy leading the charge.

McCoy first tried to repeal the 2005 zoning amendment in May, but when public sentiment soured against the application, he vowed to “look at the issues … look at it and bring it back.”

At the PZC’s meeting on Aug. 19, McCoy urged the commission to repeal the amendment and undo the restrictions for the good of the town’s economy.

Contradicting statements made by Economic Development Coordinator and Assistant Town Planner Marina Rodriguez, McCoy said there was “significant interest” in the parcel from a refrigeration company that wanted to build an 180,000-square-foot facility and create 140 jobs.

Rodriguez has said numerous times that there has been no interest in the parcel because of the variable setback requirement.

“This project may not go at this particular site, but this site without the change in this buffer zone makes it really no good for anything but skyscrapers, and a 40,000-square-foot footprint doesn’t work,” McCoy told the commission.

Resident Edie Chernack quoted McCoy’s words back to him at a recent Town Council meeting, including statements he made about the need for economic development and job creation.

She went on to cite PZC member Victor Riscassi, who made similar comments during a discussion of a new application to undo the restrictions, which was presented Sept. 16.

Ricassi argued that the PZC should consider reversing the 2005 amendment because of the recession, calling the step “welfare” for the community.

“This is our economic stimulus for Vernon,” Ricassi said.

Chernack said, “I have to wonder what prompted him to say something like this, seeing it is obvious it has nothing to do with the PZC regulations and the plan of conservation and development.

“Increasing the tax base is not part of either of these,” Chernack said.

Despite the criticism of McCoy for speaking directly and authoritatively to a regulatory commission, McCoy spoke to the PZC again Thursday, seating himself beside Rodriguez at the dais.

Council Democrat Marie Herbst protested as McCoy began speaking, saying that town officials should speak to commissions as private residents only, during public participation.

Herbst was blocked from speaking to the PZC about an application in February when Town Attorney Harold Cummings discouraged officials from speaking in an official capacity.

Herbst and other council members were allowed to speak at a later meeting, only after they emphasized that they were commenting as private residents.

But PZC Chairman Lester Finkle would not acknowledge Herbst, and McCoy shouted over his shoulder to her that as mayor he was exempt from that rule, “and I’m speaking on behalf of the town.”

McCoy reiterated that there had been interest in the parcel from a company, and taxes are the only way to pay for essential services like a fire department.

“The legislature only gave us so much land to be used to raise revenues to do those things,” McCoy said. “Any development is something the community has to embrace or you’re just going to raise taxes.”

In an attempt to compromise, Tundermann raised the possibility of utilizing “low-impact development” techniques on the parcel to minimize the flow of pollution into the Tankerhoosen.

Such development uses engineering strategies that mitigate storm water runoff, including permeable pavement, rain gardens, and grass drainage swales.

But McCoy has opposed codifying low-impact development in the zoning regulations, a position he reaffirmed Thursday, saying they “take control away” from the town.

Finkle opened the application up to public comment, but only two individuals had a chance to speak before the hearing was continued to the next meeting on Oct. 21.

Harriet Street resident Mary E. Kelley said the reasons for undoing the restrictions are all either improper or incorrect, citing the courts’ detailed opinions upholding the restriction’s merit.

The arguments presented against the restriction, Kelley said, “have already been explicitly rejected by two courts.”

She went on to suggest that there has been little interest from developers because the parcel has been the subject of litigation until recently, and emphasized that according to state law, it is illegal for the PZC to consider economic factors.

Lawyer Marjorie F. Shansky spoke on behalf of two groups, Smart Growth for Vernon and the Rockville Concerned Citizens for Responsible Development, and agreed with Kelley’s statements.

Shansky said Rodriguez’s rudimentary representations of the parcel and its restrictions have provided the PZC with only a limited understanding of the issue.

“You have been given an abstraction… and it is wholly inaccurate,” Shansky said.

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