64 South Elm Street – A Hutch for Every Senior
(This is the next chapter in the story started here.)
The battle over the fate of 64 South Elm Street is over. We identified corruption and incompetence on the Windsor Locks Planning and Zoning Commission (PZC), but that is rarely sufficient to get a decision overturned. Certain members of the PZC are proudly in the tank for Merrigan & LeFebvre (M&L), but there are only very specific problems that can be raised on appeal and everything is stacked against plaintiffs. I will describe many of our arguments below, to provide a single resource to learn about this project and the corrupt people behind it. One lesson learned is that M&L didn’t get where they are through business acumen. Rather, their connections in town allow them to bend rules to do things that average residents wouldn’t get away with. And they are doing these things not to better the town, but to profit on every inch of remaining green space.
After the first pair of applications were remanded to the PZC, M&L decided to instead propose a different development. This would still be a multi-family development, but with some important differences. Where the first proposal was for 22 large townhouses, the second proposal was for 24 senior (55+) apartments. This probably reflected changes in the market but the new applications were stronger for a few reasons. This is a lower-intensity use. The first proposal was for homes that theoretically were for full families. It was entirely conceivable for each of the 22 units to have between two and four cars each, for a likely total of at least 50 cars added to the neighborhood. Many of these buyers would be younger families, potentially with driving-age kids. It’s clear that this would have added traffic to South Elm Street at all hours of the day and night, as well as cookouts and hanging out on the patios, even late at night. The new proposal, in contrast, would likely have 1-2 cars for each of the 24 units and many of those residents wouldn’t really be going out at night. There are still a few problems with this new proposal, as I see it.
- This is a terrible location for seniors, especially those who can no longer drive. There isn’t even a bus within walking distance of this location. Peggy Sayers famously implied during the decision phase in the zone change hearing that any development in town is transit-oriented because we have senior shuttles. This is a ridiculous viewpoint, and not at all what is meant by the term “Transit-Oriented Development.”
- Once the zone is changed, the door is opened to other types of multi-family developments, including that proposed in the first application. Most such developments would require a new hearing for the site plan and special use permit. However, since M&L aren’t actually taking advantage of any special senior housing provisions in the zoning regulations, I believe they could probably just decide next year to instead allow 50+ instead of 55+, for instance, as long as they don’t change the actual buildings, parking, etc. In other words, the special use permit is for apartments. The 55+ aspect is really just a company policy on their side.
- These units would be owned by M&L. They haven’t cared for the property during the 5 years they have owned it so far, so why would we expect them to become a good neighbor in the future? Remember the salvage operation?
Below you can find all briefs linked for the second set of court cases, brought in order to appeal the second pair of PZC decisions. As before, you will notice a significant difference in writing quality between the plaintiff and defense lawyers. After losing the first time around, M&L fired Attorney Chris Smith and hired Attorney Paul Smith from here in town. His legal writing is embarrassingly bad, but that’s not why people hire the townie lawyer. You have to remember with all of this that everybody involved is part of one of two political parties and/or the Lions club, all of which are then part of the old boys’ club. All parties involved in this went to school together, they socialize extensively together, and they discuss these matters as friends before, during, and after consideration by the commission. The problem is that some of that is unethical and can violate state law.
Appeal: Zone Change
As in the first proposal, the first step was to change the zone from Residential A and AA to Multi-Family Special Development (MFSD). Here are some of the problems we raised in our appeal to the Superior Court. This hearing was held on July 11 and August 8, 2022, and the PZC approved the zone change on August 8. Here are some of the arguments raised on appeal to the Superior Court.
Lack of Proper Notice
The signs placed on the subject property displayed a phone number to call in order to learn about the upcoming hearing. However, when residents called the number, the person answering the phone was unaware that a hearing was even scheduled. One caller was referred to the town planner’s voicemail, but the call was never returned. It is self-evident that the public should, upon reading the sign, have a reasonable means to obtain information about the time, place, and purpose of the public hearing. As in the previous applications, all notice requirements must be met in order for a commission to have jurisdiction to hear an application.
Incomplete Application
Chairman Vincent Zimnoch realized that the required preliminary site grading and drainage plan was missing from M&L’s application materials. This discovery was made after the public hearing had already been going for one night and only a couple days before the hearing would be continued. This new information was never added to the posted packet for the hearing and residents didn’t hear about it until after the time for public comment had closed. The public is always supposed to have a chance to review and comment on all materials considered by the commission, and in this case they didn’t.
Letters not Received by the Commission
Several residents submitted letters via email in advance of the public hearing. The commission never received these letters from the Town Planner. Hearing attendees went far beyond the call of duty to alert the commission of missing letters. In one comical exchange, an attendee gave Commissioner Wilson his phone so a letter could be read into the record. Even so, some letters were never considered. One such letter happened to be from the same lady who had trouble getting information about the public hearing in the previous month (the hearing was continued and she wrote in the interim). It’s very troubling when a resident can’t get information about a public hearing, and then when she writes to complain about it, that letter is conveniently not received.
Outside Information During Deliberations
Commissioner “Ex Parte Alan” Gannuscio referenced information from another commission he sat on, a website for a housing development in town, and a study called the Connecticut Housing Assessment. None of these items should have been introduced after the close of the public hearing. Doing so deprived the public the ability to review the information and comment on it, and thus it violated state law.
Commission Treated Public Hearing as a Formality
Chairman Zimnoch complained that one resident spoke for a long time. Members of the public legally have as much right to speak at public hearings as an applicant. But the PZC has a history of trying to limit public comment to only a couple minutes per person or, as in this case, complaining when residents have a lot to say.
Chairman Zimnoch then also made comments in effect placing the burden of making sure that the commission receives letters on the letter writers themselves, who obviously aren’t usually present at the hearings. It is the commission’s duty to create processes to ensure that all letters are received and considered.
The commission looks at public input during a public hearing as an inconvenience that they must sit through, when really the public’s participation is equally important to that of the applicant.
No Valid Collective Reason for Decision
As in the first proposal, the Commission failed to make some specific findings required by law. Additionally, they failed to state reasons for the zone change, also required by law.
Spot Zoning not in Accordance with Comprehensive Plan
The town planner’s report mentions other MFSD uses nearby, in an attempt to bolster the argument that the subject property is in a transition area. However, those are non-conforming uses in lower density residential zones, so actually the new zone is completely surrounded by low density residential. Even the high school and church are simply permitted uses on property that is zoned for single-family residential. A supposed goal of zoning boards is to bring nonconforming uses into conformity, but this change will instead serve to perpetuate those nonconforming uses. This zone change is for the benefit of a single applicant, a friend of the commission, not to create coherent plan for the town.
Appeal: Special Use Permit and Site Plan
After changing the site’s zone to MFSD in the first public hearing, the next step was the special use permit and site plan review. This public hearing took place on March 13 and April 10, 2023, with the PZC approval on April 10. Here are some of the arguments from the appeal of that decision to the Superior Court.
Applicant Failed to Provide Substantial Evidence of Sewer Capacity
This is a somewhat involved issue with more details in this previous post. In short, M&L submitted a previous accommodation letter from the Water Pollution Control Authority in the zone change public hearing above, but this approval was based on an inaccurate sewer map that failed to show a choke point that existed downstream from the proposed development. Merrigan & LeFebvre then got a new letter of accommodation from the WPCA, but the new letter stated that it was still based on the same inaccurate sewer map. Further the wording of the letter and my discussions around town make it apparent that the letter was written under duress. First Selectman Paul Harrington was the boss of Public Works Director Phil Sissick, so it seems he made him write the letter, likely after contact and possibly threats from M&L. Indeed, Harrington expressed concern that M&L could sue the town for erroneously granting an accommodation related to the previous proposal.
In this new public hearing, it came out that residents downstream from the proposed development were already experiencing sewage in their yards! In addition, attendees presented detailed sewer maps and email chains demonstrating that no adequate study had been done to support the WPCA’s accommodation letter.
It seems obvious that an applicant should be required to get a new accommodation for each new application. A year had passed since the previous accommodation, and things change. Putting the possibility of errors aside, sewer loads change over time, so reasonable people don’t believe that such an approval lasts forever. Ultimately, an applicant has the burden of providing substantial evidence that there is adequate sewer capacity, but here for every favorable letter submitted by the applicant there was a Public Works email chain undermining that letter.
Improper Calculation of Fee in Lieu of Open Space
The Windsor Locks zoning regulations require the developer of a multi-family development to give 20% of the land to the town to be used as open space. Alternately, the PZC has the ability to instead allow the developer to pay a fee in lieu of this requirement, equal to 10% of the market value of the property with structures removed.
In this case, we know that M&L paid $190,000 for the property with intent to tear down the house, so one could make a reasonable argument that $190,000 is a fair market value of the land without the house. In fact, given that the house will cost money to tear down, one could also argue that the value to M&L without the house would be even greater than $190,000.
The assessor valued the lot, less structures, at $123,100 when it was previously zoned as Residential A and Residential AA. After changing the zone to the higher-density MFSD zone, the value clearly increased. One could therefore argue that the assessor should have reassessed the lot as MFSD and based the fee in lieu on that new value.
The one thing everybody should be able to agree on is that the lot was not worth a mere $123,100 at the time of this hearing. However, that is the number the PZC chose to use for this calculation, resulting in a fee of only $12,310. The rationale given by the commission and the town planner was that the property wasn’t assessed at the new higher value because there was an active lawsuit (above) regarding the zone change. If they didn’t believe the zone had been changed, then it raises the question of what we were all doing there, given that a developer can only apply for a special use permit for multi-family housing in an MFSD zone. This money is destined for the open space fund, to be used by the town to purchase and maintain open space. Setting this number arbitrarily low was a gift to a crony at the expense of taxpayers.
Finally, the PZC misunderstands who is in charge at these hearings. They referred to “accepting” an “offer” by the applicant, rather than their actual job which was to either require open space or set a fee in lieu.
Buildings Too Close Together
The Windsor Locks zoning regulations state that walls on adjacent buildings must be at least 50 feet apart if both walls have openings, such as windows or doors. If only one of the two walls has openings then the minimum distance is 40 feet. In this case, the applicant has seemingly found one weird trick to avoid complying with this regulation. The approved site plan has one corner building that is canted at approximately a 45-degree angle between two others. Apparently, Gary Merrigan’s semi-literate cronies on the PZC think that means none of the distance rules apply, so the approved plan includes a building with 38 feet separation on one side and 23.1 feet separation on the other.
Even with the mediocre construction that has become synonymous with the Merrigan brand, these buildings will stand for decades. Additionally, this development will look like a medical office park in the middle of a single-family neighborhood, and putting buildings too close together will enhance that appearance. Our town is losing its limited green space for good because the PZC wants to help a buddy out. Finally, a site with no green space is bad for the seniors who will live there.
Incorrect Calculation of Permissible Density
The Windsor Locks zoning regulations allow eight units per acre in an MFSD zone. However, they also state that the acreage used for this calculation must not include any detention basins or areas with slopes in excess of 15 percent, and some other things. In this case, the site plan calls for slopes in excess of 15 percent, so we believe that this reduces the allowable density for the development.
Merrigan & LeFebvre have argued that the regulation refers to the pre-development conditions of the lot, rather than the post-development conditions. This doesn’t make sense for a few reasons:
1) Locking a developer in to whatever crazy condition the site is in when he bought it doesn’t make sense. If a developer buys a hilly lot, normally he is encouraged to make grading changes to make the lot more usable.
2) One of the reasons for zoning regulations is to create developments that are nice places to live. Here M&L is proposing senior housing with major slopes in areas of the lot. Seniors famously don’t do well on sloped terrain.
3) Using the pre-development conditions of the site could allow developers to game the system by simply grading the lot (which generally requires no approval) before coming to the PZC.
Let’s imagine that the current development doesn’t work out and M&L comes back before the PZC in a few years to propose a new site plan. According to their argument, they should be bound by the current state of the land. So the fact that they added slopes means that they would not be allowed the same number of units the second time around. This is the type of absurd results that commissions and courts are supposed to avoid. Also, we know that the PZC would never allow this to happen. They will interpret the regulations in the moment for whatever is better for M&L. We residents need to be prepared in the future to hold them to this interpretation that they have argued for, even if it means taking them to court again.
Note: We don’t actually know what the allowable density would be if they calculated this acreage correctly. They have refused to do the calculation, so we have to assume that it comes out unfavorably for them. In other words, it likely brings their acreage to less than three acres, meaning they would no longer be able to build 24 units.
Commission Disdain Toward Public
Public hearings are required by state law, with the intent of allowing the public to provide testimony that should be considered on equal footing with that provided by an applicant. In this case, however, the commission complained about residents speaking too long or about things that, in their view, weren’t relevant. For example, one commenter was cut off for talking about traffic. Traffic is absolutely relevant with approving a site plan, because it can be impacted by driveway and parking decisions. Traffic is also relevant when issuing a special use permit, because different proposed uses for a property have an impact on traffic volumes and time-of-day. The applicant was allowed to discuss traffic, so why weren’t residents? Commissions are also not allowed to restrict the time for comments. Merrigan & LeFebvre weren’t told to keep their comments short, so why did Peggy Sayers insist on this for public comment? The likely reason is that she is friends with Gary Merrigan and she was annoyed that she had to sit and listen to opposition comments when her mind was already made up.
Decisions
In the previous pair of appeals, we were assigned a seemingly good judge. He asked a lot of questions and tried to understand the issues. For this second pair of appeals, the initially assigned judge seemed reasonable. Our attorney lives in the neighborhood of the proposed development, so during one meeting Attorney Landolina made a sexist comment about her marital status. That initial judge rightly shut that discussion down. (Aside: This was a theme. Attorney Chris Smith in the first pair of appeals was also very interested in whether or not our attorney was married, though there would obviously be no case in which this would matter.) But then before trial the case was reassigned to Judge Quinn, who was a retiree that I guess they brought back to help with caseload. Whereas in the first pair of appeals, the judge asked a lot of questions and really tried to understand the issues, Judge Quinn asked zero. The trial took a while and had to be continued to a second day. She said it had to be quick because in a few days she was headed off to Florida for the season. She then took the entirety of the allowed time to write up her decisions, which you can read here and here, siding with the defense. She did not really engage with the arguments fairly, but there was one point where she agreed with our analysis of the law, right before contradicting herself and ruling the other way on the issue.
Due to the terrible quality of the decisions from Judge Quinn, we opted to appeal her decision to the Appellate Court. However, in Connecticut the Appellate Court doesn’t automatically take on all land use appeals. Plaintiffs must first convince the court to grant certification. Only after they opt to do so (take the case) do they hear arguments as to why the lower court judge was wrong. The Appellate Court is not in the business of fixing mistakes. They prefer to take cases on where they believe there are opportunities to develop the law. Our appellate lawyers were optimistic because we had a couple of issues that were reasonably strong, and one said that we were some of the more sophisticated clients they have had in terms of knowledge of law and legal procedure, as well as understanding the scientific and engineering aspects of the project. That’s what happens when I am immersed into the topic for five years I guess. However, at the end of the day the appellate court grants something like 20-25% of certifications requested. We didn’t make the cut, so our case wasn’t heard.
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