Update: Attorney for 9-15 Albany agrees to postponement of public hearing

Commission reschedules for Jan. 5

Updated 11:15 a.m. and 7:10 p.m. Wednesday, Dec. 15.

By John Fitts

Staff Writer

CANTON – The attorney representing the owners of 9-15 Albany Turnpike has agreed to the postponement of a Canton Planning and Zoning Commission public hearing about proposed earthwork and grading on the site. The hearing was scheduled to open Dec. 15 but last week town officials noted an issue with the legal notice and suggested it be delayed to a special meeting Jan. 5.

Wednesday evening, the commission officially took that advice and set a special meeting to take place Jan. 5 at 7 p.m. A link to that virtual meeting will be posted to the town web site shortly.

The 26-acre property, which contains a prominent traprock ridge, was the subject of a controversial development proposal denied by the commission earlier this year and a development team has more recently filed a plan for excavation and grading that “may provide an opportunity to create a gravel access road to the rear of the property in the future.”

In August, the owners of the property filed an application that notes the hope to remove 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 that blasting would likely involve two to three blasts each month in a period of approximately 12 months.

Litchfield based developer Mark Greenberg is listed as principal for the applicant, 9-15 Albany Turnpike, LLC.

Members of the development team recently told the Canton Conservation Commission that multi-family housing is a possibility for the Simsbury portion of the property and acknowledged that at least one development pad could eventually be proposed closer to Route 44.

Kevin Solli of Solli Engineering told the Conservation Commission earlier this fall that the current application is being filed because the property owner is looking to secure his rights for access to the property. He also touted the fact that it proposes far less earth removal than the previous plan.

The Planning and Zoning Commission was slated to open a hearing on the August application the evening of Oct. 20 but earlier that day the development team withdrew it and filed a new one.

A hearing for the October application was due to start on Nov. 17 but an error in the legal notice was discovered shortly before the meeting, town officials said, and the hearing was postponed to Dec. 15.

However, in the packet for the Dec. 15 meeting is a Dec. 10 memo from Neil Pade, the town's director of Planning and Community Development. It, in part, states, "Yesterday the Town Attorney identified that the notice published by the Hartford Courant for the December 15th meeting was not the notice submitted by the Town. This raises a concern regarding the opening of the hearing under this notice. Staff notified the applicant of the concern yesterday and suggested the possibility of a special meeting to be held on January 5th. While there is still statutory time available to open the hearing, this will allow the application timeline to be on a similar schedule to that which would have otherwise occurred. Depending on the response from the applicant, the Commission should be prepared to potentially postpone the opening of the hearing at the December 15th meeting, to a special meeting to be scheduled on January 5th, or another date."

Timothy M. Herbst of Marino, Zabel & Schellenberg, who represents 9-15 Albany Turnpike, in a letter dated Dec. 15 states," After consulting with my Client and our development team, we will agree to a special meeting on January 5, 2022. That being said, I must underscore that this cannot happen again. If the Hartford Courant made this mistake, then I am respectfully requesting that the Town do everything in its power to make sure the Hartford Courant gets this right. Since we now have additional time before the January 5, 2022 public hearing, please advise as to when we can expect full compliance with our original FOIA request."

The FOIA - or Freedom of Information - reference alludes to a request from Herbst seeking email correspondence and other documentation concerning the property.

The property has been the subject of controversy over the past year or so.

In June of 2021, the commission denied an application for a 23,500 square-foot Electric Vehicle Showroom, 20-pump fueling station and related development at the property. While most of the property is in Simsbury, much of the development would have been in Canton. While that application was filed in 2020, the plan gained widespread attention in 2021, and Canton Advocates for Responsible Expansion filed for party status as an intervener under a state conservation law and ensuing meetings became, at times, heated as experts from both sides debated whether the plan was in align with the town’s Plan of Conservation and Development and whether blasting could affect public utilities, area wells or potentially mobilize pollution surrounding the state superfund site at 51 Albany Turnpike.

In June, the commission listed numerous reasons for denial, but the common theme from its members was that the plan did not strike the proper balance of preservation of a natural resource with economic development referenced for the property in the POCD.

In its denial, the commission also noted many alleged deficiencies in the application and remaining questions about safety and impact to the community. When it came to C.A.R.E.’s petition under a state environmental law, the commission did not feel it met the burden of proof that the project was “reasonably likely to cause unreasonable harm” in terms the portions of its petition that referenced the likelihood of degradation of groundwater or the “fate” or “transport” of chemicals from the superfund site. However, many commissioners were much more agreeable to the intervention petition’s reference to the “destruction and loss of significant environmental features.”

While the latest application has drawn less attention, and has not yet gone to a hearing, there has been some controversy over it.

Early on, correspondence from the attorneys for the applicant and the town have alluded to what could become a legal question over what constitutes a “use” and whether such activity can be approved without a corresponding site plan.

More recently, Herbst has written letters to the town officials and the commission raising issues with the delays and discussions from town officials, including the idea to work with Simsbury to develop a master plan for the property. (A proposal Simsbury officials said they would not be interested in pursuing).

Herbst states in a Nov. 29 letter that those activities and others – which he calls a “morass of obstacles, delays and roadblocks” – leave “no question that the applicant has been denied due process and fundamental fairness in the administrative process to date.”

Bob Skinner, Chief Administrative Officer for the town of Canton, expressed confidence in the Planning And Zoning Process.

“The town will follow its normal procedures,” Skinner said.

Herbst, in a Dec. 8 letter, questions the need for the $6,000 the commission requested for a technical review of the latest application, noting the previous peer preview for the prior plan on the property and raising concerns whether it would be independent and how much access the applicant would have with the reviewing party. He also states the fee will not be paid until the questions in the letter are “answered by the town and the commission.”

Pade, in a response states that a “new application of this nature” warrants a technical review and states, in part. “I’m not sure I agree with your classification of this as an ‘independent, third party review.’ The consultant reports to the Town and represents the Commission no different than a Town Engineer. I do not think it is unusual for an applicant’s engineer to reach out to a Town Engineer and would not look at this differently, provided that the set fee for the technical review is not exceeded.”

Pade also states that the review documents would be given to the applicant’s engineer in time to respond before the commission’s regular January meeting.

In another document prepared for the Dec. 15 meeting, Pade notes that even if the hearing is not open that evening, the technical review fee should be finalized, ideally that evening.

The commission did just that and set the fee for the latest application.

In addition to a myriad of potential issues raised by the developer and town, the new application is beginning to pick up steam in the public arena – at least to some degree. While there were just four letters of opposition prior to the commission’s Oct. 20 meeting, the packet for the Dec. 15 meeting contained at least a dozen that had come in Since Nov. 10

One, from Jeremy Pilver, states, in part, “As was clear in the previous application for development, this project was not appropriate for this site or our town, and did not warrant the issuing of a special permit to conduct this work. The property owner’s revised proposal of a “road to nowhere,” is an even thinner veil and pretext for the blasting and export of the natural resources of our town. I hope that the commission will once again recognize the potential damage, disruption and destruction that this proposal will have on our town, and deny this application. Thank you for considering my opinion in this matter.”

Meanwhile, the Conservation Commission had weighed in on the application after meeting on Dec. 7, the third time it had discussed the proposal (the first of those meetings was originally concerning the August application, but the development team told its members that the October filing was essentially identical).

While Kevin Solli, of Solli Engineering had told the Conservation Commission that the proposal was far less intensive than the previously planned activity on site and that the developers understood the importance of the traprock to the town and the need to balance development and conservation, its members struggled with the proposal and the uncertainty of how development on the property would ultimately shape up.

At the Dec. 7 meeting, Conservation Commission member expressed several concerns with the plan and the unknowns of what could happen on the property.

"Just looking at what they’re proposing I think there’s going to be a significant impact to the area, aesthetically and environmentally," Conservation Commission chairman Kevin Erwin said.

According the draft minutes of the Dec. 7 meeting the Conservation Commission’s advisory statement to Planning and Zoning is, “Having reviewed the application and carefully studying the Town of Canton Plan of Conservation and Development, the Commission does not believe the application contains any element of conservation. Therefore, the Commission cannot give a favorable recommendation to the Planning and Zoning Commission on this application.”

Attend the virtual meeting via https://www.dropbox.com/sh/i2yf7oipigyotef/AAD8V9ZnVIIrEMlm3YeBJUZ4a?dl=0&preview=00+-+PZC+SM+Agenda+01-05-22.pdf