64 South Elm Street – Merrigan’s Rabbit Hutches
Here is a story about a corrupt local development company and their personal the Windsor Locks Planning and Zoning Commission (PZC). This is dense, but less so than reading all of the court briefs. It is intended to put all of the information out there in perpetuity as a record of how things are done in Windsor Locks. Sunlight is the best disinfectant. Windsor Locks is quite dense, and we have existing environmental problems due to over-development and the international airport. The PZC should make common sense zone changes as appropriate, but they should conduct fair hearings and proposals should adhere to all regulations and laws. They should not favor applications by friends of the commission.
The PZC received, heard, and approved applications from Merrigan & LeFebvre Development (M&L) for two slightly different proposed projects. The first was for 22 townhouses on a three-acre lot. After the Superior Court found deficient notice and remanded the issue to the commission, M&L came back with a different application. This second application was for 24 senior (55+) apartments. This post will focus on the first proposal. A subsequent post will describe similar issues with the PZC approval of the second proposal.
Multi-family developments in residential zones require two public hearings and commission decisions. First, the zone must be changed from Residential A or AA to Multi-Family Special Development (MFSD). In this proposed development (and surrounding lots), the front part of the lot was previously zoned Residential A and the back half of the lot was zoned Residential AA. A proposed MFSD development then requires a special use permit and site plan review, which necessitates a second public hearing in front of the commission. The hearings both started on March 9, 2020, and the commission closed the first public hearing and approved the zone change on that night; but they continued the second public hearing. They finally approved the site plan and special use permit on July 27, 2020. Residents filled the Ella Grasso Conference Room at the Windsor Locks Town Hall on March 9th, and nine spoke against the proposed development. Three property owners also wrote letters opposed to the development. Zero residents spoke or wrote in favor.
During the course of the public hearings it was clear that some members of the commission, most notably Chairman “Ex Parte Alan” Gannuscio, were in the tank for M&L. One resident eventually submitted an affidavit (linked here, page 23) to the Superior Court, describing an inappropriate and possibly illegal conversation that Ex Parte Alan had out in the hall with representatives from M&L and their lawyer, Attorney Chris Smith. Ex Parte Alan also engaged in some weird leading conversations with Gary Merrigan during the hearings, where he helped the applicant make his arguments.
Attendees were shocked at the biased behavior of the PZC, so two residents decided to appeal the decisions to the Connecticut Superior Court. When a resident appeals a zoning decision, the commission is a defendant but the developers also usually join the defense and their lawyers do most of the work. Notice the stark difference in writing quality of the plaintiff’s briefs and the defendant’s briefs. Merrigan & LeFebvre hires some pretty bad lawyers. For this first pair of applications, they had Attorney Chris Smith, who was from a reasonably respectable firm. But he either didn’t spend much time on crafting briefs, or had some associate not spend much time on crafting briefs. Because the appeals process is weighted heavily in favor of the commission, it is rare for plaintiffs to prevail. If they do prevail, the Court usually remands to the commission rather than overturning the original decision. Basically they send it back to the commission with instructions to do it right this time. Here are links to all of the briefs for these appeals.
Appeal: Zone Change
The first PZC public hearing was for the zone change from Residential A and AA to MFSD. Here are some of the arguments we raised on appeal to the Superior Court. I am only including the parts here that are easy to describe to laymen, but you can read all of the claims in the documents linked above.
Lack of Proper Notice
The regulations require a sign to be placed “conspicuously” on the subject property to notify residents of the public hearing. In this case, Gary Merrigan placed it far from the street. This sounds like a technical quibble, but legally it’s more important than all of the other arguments, as proper notice is a jurisdictional issue. If there is not proper notice, in accordance with state law and local regulations, the commission does not have jurisdiction to even consider the application. Note that it is not necessary to prove that any particular residents were not informed about the public hearing. Notice requirements cannot be waived. They must be followed exactly or the commission may not proceed. Look at the photo below and see if you think this sign was placed conspicuously with an intent to inform the public.
Improper Standard of Review
Planning and zoning commissions wear two different hats at different times. The first, worn during a zone change, is when they are acting in a legislative capacity and they have broad discretion. The second, worn during site plan reviews or when granting special use permits, is an administrative capacity which affords much more limited discretion. In this case, the commission was wearing their first hat and had broad discretion to approve or deny the application. However, in their discussions, they treated the public hearing as a formality, with Commissioner Quagliaroli stating, for example, “the zoning it says that you can do it…because by law you can do it, then, I would vote for it.” Chairman Alan Gannuscio (“Ex Parte Alan”) also referred at one point to a past decision, where “we had a Judge jam it down our throat and tell us exactly as it was proposed, it had to be approved.” These comments indicate that the commission did not understand that they were there to hear the testimony provided by the applicant and the public, and then make the best decision, not merely rubber stamp the proposal if it met some specific criteria. It gets even worse, though, because Commissioner Doug Wilson incorrectly explained that a two step process applies, such that the commission first approves the zone change, and then has more latitude in the special use permit stage. This is exactly backwards. The commission would have less discretion in a special use permit hearing, as it would be wearing its administrative hat rather than its legislative hat.
No Required Findings of Fact
When approving a zone change, a majority of the commission is required to make certain findings. Specifically, they are required to collectively agree that the change is consistent with both the Plan of Conservation and Development (POCD) and the Comprehensive Plan. They must also determine that the change is within their “police powers” enumerated in state law. The commission did not make these findings as part of this approval. By the way, to the extent that the POCD was mentioned by the commission, it was the newer draft version that had not yet been passed. It was not binding for this analysis, but the commission apparently preferred it because it better supported the decision they wanted to make.
No Collective Reason for the Change
The commission is required to have a collective reason as to why they are making the zone change. It doesn’t have to be stated explicitly, but looking through the transcript one should be able to find rationales that are shared by a majority of the members. In this case, no such rationale existed. Two commission members did mention that the project would provide senior housing, which they believed was needed. However, the proposed project was explicitly not senior housing. These were townhouses with no age restriction, and M&L bragged that they would be large, two-story units, not useful for senior citizens wishing to downsize. There are several contradictory statements about this on the record. Also, even if the presented plans had been for a senior housing project, a zone change to MFSD would open the door to other uses as well.
Improper Reliance on Police Department Opinion on Traffic
The commission regularly looks to the opinion of the police department when it comes to the traffic impacts of various developments. However, this is improper. The police are not traffic engineers and the state has not given police the authority to make such recommendations. According to Fuller, the preeminent book about Connecticut land use law, the only aspect that police can opine on is whether a development will impede access in the case of an emergency. In this case, the police chief wrote only two words: “no issues.” These words from a person who is neither trained nor authorized to opine on traffic impacts were cited by the commission to rebut all traffic concerns brought forward by residents at the public hearing.
Alan Gannuscio Ex Parte Communications with Applicant
Before these first two hearings, Ex Parte Alan met with the applicants and their lawyer out in the hall. Ex Parte Alan told them about the contents of emails that he had received from the public. For the chairman of the commission to help prepare a developer for an upcoming public hearing raises questions about the fairness of the hearing, and it’s likely illegal. A member of the public completed an affidavit (linked here, page 23) detailing exactly what he overheard during this hallway meeting. Note that evidence like this is extremely hard to get added to the record for consideration by the Superior Court. Generally the court only considers items that were actually part of the record at the original public hearing of the PZC, and the defendants (the commission and the applicant, through their attorneys) fought against having this included, though it is precisely the type of thing that should be allowed in order to prove misconduct by Ex Parte Alan.
In general this public hearing and the one below both were both heavily biased in favor of the applicant. Notably, Ex Parte Alan exerted a lot of effort trying to discredit the public. He talked about the “misinformation” that was going around amongst the public, all because a single letter writer misused the term “apartments.” That letter writer was writing as a layman who probably didn’t know or care the difference between apartments and condos, so only rampant bias could explain a commissioner latching onto this detail and using it to attack opponents of the development. Remember, the commission is supposed to be impartial and fairly consider all sides.
On appeal, the Superior Court agreed with the residents on the first point above, regarding the inadequate public hearing signage. The judge relied on Gary Merrigan’s own photo from the record to determine that the sign was far from the road, and thus not conspicuous. Because the notice was not in accordance with the town’s regulations, all other arguments were irrelevant and thus the whole thing was remanded back to the commission for re-hearing. This is usually what happens when a plaintiff “wins” at the Superior Court. The court doesn’t want to be in the business of making local zoning decisions so they just tell the local commission to try again and do it right this time. Note that Gary Merrigan was allegedly going around telling people he won. This is either stupid or a lie. The court didn’t rule on the substantive problems because it didn’t have jurisdiction to do so when the signage was improper, and even if they had ruled for the plaintiffs on those other issues, they still probably would have just remanded to the commission.
As a matter of justice, Gary Merrigan knew what he was doing when he placed the sign far from the road. He may not have known the specific text of the regulation, but he knew he didn’t want many people to learn about the public hearing so he placed the sign accordingly. In contrast, when M&L are trying to sell houses around town, they place those signs close to the road. We will never know what the court would have decided on the remaining points above, but his intentional effort to limit public awareness resulted in a multi-year delay on development. This was a fair result.
Appeal: Special Use Permit and Site Plan
This second public hearing opened on the same night as the one above but the application was approved on July 27, 2020, after several delays due to the Covid-19 pandemic. Here are some of the arguments we raised on appeal to the Superior Court.
Lack of Proper Notice
As both public hearings started on the same night in March, 2020, the sign on the property was the same sign from the hearing above. The town’s regulations here are more specific than for zone changes. They require the sign to be placed less than 10 feet from the “street property line” to notify residents of the public hearing. There is room for debate as to what “street property line” means, but Gary Merrigan placed the sign 23 feet from the street, which is obviously farther than permitted. As above, proper notice is a jurisdictional issue. If notice is not given in accordance with state law and local regulations, the commission does not have jurisdiction to even consider the application.
Alan Gannuscio Ex Parte Communications with Applicant
As described above, before these two hearings Ex Parte Alan met with the applicants and their lawyer out in the hall. He told them about the contents of emails that he had received from the public. For the chairman of the PZC to help prepare an applicant for an upcoming public hearing raises questions about the fairness of the hearing, and it’s likely illegal. A member of the public completed an affidavit (linked here, page 23) detailing exactly what he overheard during this hallway meeting. As described above, this affidavit did not make it into the materials for consideration by the Superior Court, though it points to misconduct by Chairman Gannuscio.
Ex Parte Alan also brought in new information from outside the record during deliberations, which is in violation of state law because the public had no opportunity to consider and comment on the new content. Some of this new information was related to a somewhat comical side issue. It seems that Bubaris Traffic Associates, the firm hired by M&L to counter public concerns about traffic safety, was not in good standing with the State of Connecticut because it had failed to submit required reports for the past five years. Due to his extreme bias in favor of the applicant, Chairman Gannuscio felt compelled to illegally search outside the record for evidence to rebut this assertion by the public.
Incorrect Application of Parking Regulations
The town zoning regulations require that two parking spaces be provided for each unit, and none of these parking spaces can be within 15 feet of the wall of any building. Some of the driveways in the proposed site plan were too short to accommodate a parking spot 15 feet from the front wall of the units. This might be stupid wording in the regulation, but all applicants must adhere to regulations even if they are stupid.
Arbitrary Consideration of Need for Senior Housing
The commission stated during the above zone change hearing that we needed senior housing in town, and that is part of why we needed to change the zone for this property. They then proceeded to approve a special use permit and site plan for a project that predominately included large two-story units, precisely the types of places that seniors downsize from. Bear in mind that two-story townhouses with garages have most of their living space on the second floor, so it’s not feasible to live in such units without climbing stairs.
Incorrect Calculation of Fee in Lieu of Open Space
By default, developers of MFSD projects must give 20% of the land to the town as open space, or the commission can instead allow a fee to be paid equal to 10% of the property value. It stands to reason that the value of a lot increases when it is rezoned as a higher-density zone. Additionally, M&L paid $190,000 for the lot, and since they bought it with the intent to tear the house down and develop it, that is a fair market value for the lot. However, the commission opted to let M&L pay a fee in lieu based on the previous (Residential A and AA) assessment of $123,100. This robs the town of money that would be used for preserving open spaces. It was the commission’s gift to a crony, on behalf of taxpayers.
Incorrect Calculation of Permissible Density
The town’s zoning regulations require allowable density to be calculated based on the “Gross Acreage” of the parcel, defined as excluding “areas within a 100 year flood line, wetlands, water courses, waterbodies, detention areas, utility easements, rights of way, or areas with slopes at or in excess of fifteen percent (15%).” Merrigan and LeFebvre proposed adding such slopes and a detention area to the site, but they calculated the allowable density based on the pre-development conditions. It doesn’t make sense to calculate the density in this way, because 1) it would be easy to game by just making the changes before submitting an application, 2) normally a goal of zoning is to increase the usefulness of land so developers are encouraged to modify land to make it more productive, and 3) the regulation presumably exists because we want to make nice developments for the residents to enjoy, and slopes and detention basins in a development hinder that. Imagine arguing that this housing is good for seniors and also interpreting the regulations in a counterintuitive way that increases the allowable slopes on the property.
Town Attorney Carl Landolina and Attorney Smith both argued that the gross acreage is always determined based on pre-development conditions. This is stupid for the reasons above, but we should make sure to hold them to this interpretation in the future. If M&L comes in front of the PZC with a development on land that started out extremely hilly, we should demand that allowable density be set based on those conditions and not allow them to level the property to increase density. We all know the commission will simply switch positions at that time, but we should be prepared to take them to court if needed to hold them to a consistent policy.
As above, the court found that the signage was improper and remanded this to the PZC for re-hearing. The court did not opine on any of the other issues for the same reason explained above.