Judge approves settlements related to Simsbury housing plan

The rendering of the planned Vessel apartment building at 446 Hopmeadow St. - as included in the settlement agreement with the Simsbury Zoning Commission.

By John Fitts

Staff Writer

SIMSBURY, CT – A Connecticut Superior Court judge on Feb. 29 approved settlements related to the Vessel project in Simsbury, paving the way for a 48-unit apartment complex at 446 Hopmeadow St.

Under the court approved settlements, the apartment plan is now a scaled back version of what the New York-based company original sought to build last year. The project now includes 48 units in a brown-toned, three-story building. The project would set aside 30% of the units as affordable under state statute 8-30g, which requires those units be deed restricted for 40 years. The modified plan also includes updated landscaping and a conservation easement for an approximate 2.39-acre parcel between the Farmington Canal Heritage Trail and the Farmington River.

According to its original application, Vessel Technologies, founded in 2017, was created to address affordability issues in the housing market. The application, in part, stated, "At its inception, Vessel spent three years fully developing an innovative housing product that would provide affordable housing by (1) creating an exceptional standardized design with modern and elegant aesthetics, and (2) utilizing a modular building technique to streamline the building process. The modular building technique allows the building to be built in parts off-site and assembled in-place permitting the building to be constructed within a matter of months. The design integrates modern technology and sustainable design with the goal of passing savings to the residents. Each Vessel property is operated by a Caretaker, who will be a local resident trained by Vessel and empowered to have a career within his/her community."

On Feb. 29, Superior Court judge Edward V. O'Hanlan approved settlements related to two ongoing legal cases. First was a settlement between Vessel and the Simsbury Zoning Commission. The other involved agreements related to an appeal of action involving Simsbury’s Conservation Commission/Inland Wetlands Agency.

 "We are grateful to have come to an agreement in Simsbury and appreciate the town staff's hard work in getting us all to this resolution," stated Neil Rubler, founder and CEO of New York-based Vessel Technologies, Inc. "Connecticut needs more housing. Today’s decision will help Simsbury address that need by allowing Vessel to provide access to homes that are exciting, sustainable and attainably priced.”

It was May 2023 when the Zoning Commission denied a revised site plan by Vessel Technologies for the project that, at the time, included 64 rental units. (The original application proposed 80 units). The proposal drew intense opposition from neighbors, who noted concerns such as traffic and environmental impact. In its denial, the commission cited alleged health and safety risks to area residents in areas such as traffic, parking and erosion. It also claimed the project was out of scale.

The company subsequently appealed the decision to Hartford Superior Court. Under the appeals process related to the 8-30g statute, municipalities with less than 10% of its housing stock deemed affordable carry the burden of proof in court. The 2022 list on the state website lists the town at 5.08%.

Attorneys for the parties conducted settlement negotiations in September 2023 and January 2024, and the Zoning Commission conducted several noticed executive sessions about the case, according to settlement documents. Under state law, pending litigation is one of the parameters under which a commission can hold closed-door sessions, but votes must be taken in public, which the Zoning Commission did on Feb. 21, 2024. Several residents expressed frustration at not knowing the reasoning behind the 6-0 settlement vote, and others contended the project was still deeply flawed.

The Conservation Commission/Inland Wetlands and Watercourses Agency case was a complex one. The April 23, 2023 meeting of that agency involved three votes on the Vessel project, according to official town meeting minutes. The first was a motion to deny, with three members voting yes, two voting no and two abstaining. The minutes state that George McGregor, Simsbury’s Director of Planning and Community Development, conferred with the town attorney following that vote.

“A short recess is called for Mr. McGregor to consult with the Town Attorney to clarify the number of votes needed to approve a motion,” the minutes state. “Mr. McGregor returns, relaying to the Commission the Town Attorney opinion that a majority of members present and seated (four of seven, in this case) is required to pass any motion.”

A following motion to approve the wetlands application resulted in two yes votes, three no votes and two abstentions, the minutes state, adding that a third vote, with additional conditions on the application, resulted in an approval with a 5-1-1 vote.

Abutting property owner Dylan Gagne appealed the decision, arguing the latter two votes were illegal, but within several weeks he settled with Vessel, a matter that included Vessel’s agreement to purchase Gagne’s property at 434 Hopmeadow St. - assuming the appeal was withdrawn, according to court documents.

Subsequently, attorneys for Simsbury residents Yunfei Zhou and Kelly Rothfuss filed both plaintiff substitute and intervention motions in the case. Numerous court actions, legal filings and motions followed in the ensuing months.

At the remote hearing on Feb. 29, 2024, Vessel’s attorney, Timothy S. Hollister of Hinckley Allen, said the company had also settled with Zhou and Rothfuss.

“The agreement is the withdrawal of the intervention petition in exchange for compensation. [It] will be filed with the court upon approval of the zoning settlement and the wetlands withdrawal – everything is in escrow at the moment – and I do want to express my appreciation to attorney. [Patricia C.] Sullivan on the record for her diligent work in getting us to this point."

Sullivan, a principal at Cohen and Wolf, told the judge the scaled-back project was a major driver for Zhou and Rothfuss.

“The developer has presented a significantly scaled-down version of their original project and it includes a conservation easement,” Sullivan said. “Our clients are satisfied that their participation in the Inland Wetlands matter helped to bring about these modifications. Our clients have come to an agreement with the developers and will be withdrawing their notices of intervention presuming the court agrees that the zoning matter can be settled, and that the inland wetlands matter can be withdrawn. We see these two cases as inextricably intertwined and believe that, given the modifications, and the uncertainties of litigation, proceeding further would mean incurring significant expense and could result in a more significant development under 8-30g down the road. Therefore, the intervenors will not oppose the motion to withdraw.”

After hearing from Gagne and the attorneys involved with the cases, O’Hanlan praised those involved, saying the settlement is “preferred,” and explaining to attendees that the state legislature has assured that the court retains a part of land-use appeals, since they do involve public matters.

He then agreed to hear from residents attending the hearing, but cautioned that his role was not one that involved re-evaluating the particular of the original applications and land-use decisions.

“The purpose of this hearing is not to re-try matters that were resolved by the commission. In other words, there was an approval of a wetlands permit and there was a denial of a zoning permit that has been resolved by changes to that application. It’s not the court’s role to question the wisdom of those decisions, so much as it is to ensure that the process has been observed so that people who are interested have had an opportunity to be heard,” he said.

At least four residents spoke, alleging missteps and ongoing issues with the project. Some, for example, questioned the aspects of the wetlands votes or the fact that residents didn’t have insight into why the Zoning Commission voted for the settlement and were only allowed to speak after the Feb. 21 vote.

“I am speaking today because we were not given an opportunity to have any impact on this specific settlement prior to the zoning commission voting to approve it,” said Lori Boyko, who noted she did not live near the site of the planned project. “We were only allowed to share our thoughts in an unpublicized public hearing after the vote. I also thought there was an affirmative requirement for the Zoning Commission, although I may be wrong, to state why they were approving this settlement prior to voting, which was not done to date. Simsbury residents have not been provided any details as to why six zoning commissioners voted unanimously to approve the settlement.”

Simsbury resident Ann McDonald and three others also alleged issues with the project. While those comments addressed aspects such as fire safety and access, many focused on water runoff and nearby wetlands.

“I don’t know how our wetlands commission would allow such a blatant possible destruction of such a critical habitat that borders 446 Hopmeadow St., unless they were being bullied into it because of the 8-30g law,” said McDonald.

“The flow of water in two concentrated areas will cause the eventual destruction of the wetland embankment, which is on our property. … Though they proposed an elaborate stormwater system it will require high maintenance and we are skeptical of the follow-through for this system that will need to be done for the life of the building,” she added.

McDonald said the 52 homes in Hazlemeadow and 26 in an adjacent area were all threatened. Those existing homes are affordable by Simsbury standards, she said.

“The way I see it, this proposed development will end up harming the 75 nearby residences for the sake of the 15 now-proposed affordable rental units,” McDonald said.

O’Hanlan said that while he is not hearing the wetlands application, the project still must conform to the standards set by the commission.

“This is not a forum where the court can hear that again because the law entrusts that decision initially to the Conservation Commission. There’s a number of issues you’ve raised that I can only tell you the town has continuing jurisdiction over this project. Wetlands does not – once it issues a permit – relinquish any control or oversight of it.

You have a number of issues that you can continue to raise with the wetlands enforcement officer and the zoning enforcement officer and the law assumes that the applicant, in executing the permits that it’s been issued, will perform the conditions that have been imposed.”

Resident Kathryn Godiksen also addressed the wetland areas and asked how that related to 8-30g.

“The most disturbing is the expectation that as abutting landowners we are obliged to take on the water generated by the development’s extensive impervious surface,” Godiksen said. “The gentle slope of the watershed that naturally absorbs water on 446 property will be destroyed and replaced with a parking lot and apartment building that requires moving the water off-site onto our property. I know that 8-30g offers developers a huge advantage, but I don’t believe it allows developers to dump their water onto adjacent property, especially one that starts with a descending bank and includes a watercourse and wetland.”

O’Hanlan said 8-30g changes some things but does not absolve a project from conforming to professional engineering and other standards.

“The 8-30g process does change the landscape a little bit in terms of the legal landscape. … It doesn’t change the fundamental requirement that the applicant comply with the responsible drainage and other engineering standards that apply to any development. So again, I’m not putting a band-aid on any of this and telling you not to worry. You should continue to express that because the applicant’s engineers looked at this, the town’s engineers looked at this … and if this is going forward, there must have been an engineering consensus that this will work.”

“These are technical requirements of any development that 8-30g does not muscle over at all in the sense that people feel it changes the zoning consideration and it does in other aspects,” the judge added. “So, again I urge you to stay involved in this and keep asking questions … they have a continuing duty to you as an abutting property owner in the way that this project is constructed and works to make sure that it doesn’t impact you in the ways that you’ve described.”

O’Hanlan then approved all the settlements and praised those involved in negotiating the cases.

“As I said initially, control of your own destiny is always the best way to resolve these, and it looks to me like, and particularly with the hype and the emotion that sometimes these projects under 8-30g can involve, it looks to the court like the community has grasped the issues and has dealt with it here … and the way it has addressed the settlement comprehensively – to address the concerns both of the interveners in the wetlands action and indirectly the comments from the citizens here that I've heard – but also the applicant’s interests in the zoning matter,” the judge said.

O’Hanlan also thanked those from the community who spoke, some of whom did so twice.

“Again, I thank everyone for your consideration here today and for your participation. Thank you for taking the time to speak up like this and I urge you to keep doing so. This is not a rubber stamp. This is not the end of the issue at all, particularly as these matters deal with wetlands.”

This Simsbury GIS map shows the subject site in yellow. In the map below we have highlighted both the subject property at 446 Hopmeadow St., as well as 434 Hopmeadow, which Vessel plans to purchase.