Canton Commission denies latest application for 9-15 Albany Turnpike

By John Fitts

Staff Writer

CANTON – The Canton Planning and Zoning Commission on April 20 unanimously denied the latest application for 9-15 Albany Turnpike, contending the plan did not conform to the town's regulations.

Last year, a development team proposed - on behalf of principal property owner Mark Greenberg - an earthwork and grading plan for the export of approximately 17,659 cubic yards of material from the site – about 13,000 of which would be in the town of Canton – to potentially support future access.

The applicants contended that the activity was allowed under the town’s regulations as a “step” in the development plan for the site and said it was a responsible move following the June 2021 commission denial of a proposal for an EV showroom, convenience store and fueling station at the 26-acre site. While most of the acreage is in Simsbury, much of that EV development would have been in Canton. That plan involved extensive blasting of trap rock ridge and the development team contended this latest application was very responsive to concerns over that aspect and the commission's determination that the EV plan did not strike a balance of economic development and natural resource protection.

This time around, the development team said it was taking a more modest, responsible approach to first address the rights of the owner to access his property. At a January meeting Greenberg said that the likely scenario for the property would be a Cumberland Farms in Canton and residential housing and a restaurant in Simsbury and that he would commit that work would not take place until future, specific applications were in place. Those potential uses, however, were not a formal part of the submitted application.

“Previous applications included proposal for uses and buildings and a substantial amount of earthwork along the corridor within this area,” Kevin Solli of Solli Engineering said at the hearing opening Jan. 5. “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.”

However, the commission’s attorney, town staff and commission members raised several issues with the application, contending that the earthwork and grading section of the regulations did not allow for such an activity without a primary use, that the plan did not meet the town’s form based – or village district – requirements, was counter to sections of the Plan of Conservation and Development and was incomplete in numerous ways, including the lack of information to adequately evaluate special permit criteria triggered by the amount of proposed earth removal.

At a March 16 meeting, Commission chairman Jonathan Thiesse said the issues identified in a memo from Neil Pade, the town’s director of Planning and Community Development, were numerous.

"He identifies, by my count, over 90 instances of non-compliance with our regulations," said Thiesse.

During the hearings for the plan, the development team strongly disagreed with the idea that that a primary use was required.

As part of material submitted with the applicant’s final summation – after the hearing closed - Dr. Donald J. Poland, managing director planning and strategy at Goman & York, wrote in reference to zoning section 7.5, which covers earthwork and grading.

“Section 7.5 Earthwork and Grading does not state that such activity be associated with a permitted use,” Poland wrote. “In fact, Section 7.5.A. Purpose, states that ‘this section is intended to regulate …. public health and safety, to encourage the orderly development of the town and to provide for the restoration of property following any grading.’ In no way does the purpose of Section 7.5. state the use of property or that grading is regulated in solely in relation to use. This application for a grading permit clearly encourages the orderly development of the town.”

Commission attorney, Kenneth R. Slater of Halloran Sage, in an April 13 submittal, strongly disagreed and stood by his original Sept. 21 opinion that such grading was an accessory use and disputed the assertion that the grading section could stand on its own.

“Dr. Poland’s analysis depends on his erroneous conclusion that Section 7.5 D is an independent use category such that persons are entitled to undertake excavation activities completely unrelated to a principal permitted use. Based on that interpretation, quarrying would become a permitted use in the zone as an “activity: involving grading despite the fact that it is not contained in any of the list of uses permitted.” Among Slater’s other contentions is that “Zoning Regulations, like statutes, must be read as a cohesive whole.”

Slater also contends, among other points that it is clear “grading must be related to another permitted activity.”

Reached Thursday morning, Greenberg, said the commission made the wrong decision and said that development will eventually happen on the property.

"It doesn’t seem like anything I do is going to meet their pleasure. It’s pretty obvious. I think it was the wrong decision I think that the capability of getting a permit for excavation to the Simsbury line was perfectly valid. I did name uses. That seems to have been their issue - that there weren’t specific uses on a site plan. My attorney and my engineer made it very clear that they didn’t think it was necessary for this application, so we go back to the drawing board and put in another application. At some point in time, we will get an approval. If we don’t get an approval, essentially it will be considered a taking of my property. It’s really simple."

Asked specifically about an appeal. Greenberg said he hadn't ruled it out at some point but noted it was an expensive process.

"I don’t know what I’m doing to do on that. There’s no question that if there’s a next denial, I'll be appealing it, calling for a taking of the property for a very large sum of money because they’re not allowing me to develop in a proper manner but I’m not sure I’m going to bring an appeal on this or not, I don’t know. I haven’t decided.”

He did note some of the proposed uses he mentioned in the meetings were still on the table.

“I made it very clear, for instance at the meetings, that Cumberland Farms is in process of signing a lease. I made it clear. That’s one of the uses that I mentioned would be on the property based upon the discussions we made. We’re in the process of signing a lease right now. I’m expecting that the next approval request is going to be from Cumberland Farms.”

Greenberg also said that as of now his other plans include affordable housing on the Simsbury portion of the property, as well as for 15 Colonial Drive in Canton, for which he said he has a purchase option.

“We’re intending to provide a plan of affordable housing in both Canton and Simsbury, accessed by this driveway that was denied last night,” he said.

During the hearings at least one member of the public mentioned the idea of a group like the Land Trust purchasing all or part of the property.

"Never ever, ever going to happen," Greenberg said. "Why would I do that? Sell it to the Land Trust. First of all, the land trust doesn't have money to buy it. Number 2, I'm not donating it, so that’s never happening. I’m going to have this property until it’s properly developed in a very, very nice fashion. The people of Canton will be proud of what we do. I don’t build anything that I’m not proud of and that I wouldn’t be proud of putting on our web site. So, we’re going to do something we’re going to be proud of. Now, whether these 7 members agree with me? I don’t really care. We’re going to go ahead.”