Updated: Judge dismisses appeal related to zoning for 'axe factory' complex

Posted Feb. 1; Updated Feb. 17 and Feb. 20 due to additional court filings

On Feb. 16, Plaintiff's attorney requests extension of appeal period, raising the possibility of such action

By John Fitts

Staff Writer

HARTFORD/COLLINSVILLE – A Connecticut Superior Court judge has dismissed an appeal to 2021 changes that the Canton Planning and Zoning Commission made to the Industrial Heritage Zone (IH1) that regulates redevelopment of the former axe factory complex in Collinsville.

The complex

Set on approximately 19 acres along the Farmington River, the complex was home to The Collins Company, a world famous manufacturer of edge tools, from 1826 to the mid 1966.

While dozens of businesses operate in several buildings at the site, many of its structures are in disrepair and a series of buildings were demolished last year following directives from the town. Redevelopment has long been a goal by many in town but one that has come with much contention and numerous opinions on how that should be done.

Zoning changes

In August of 2021, the commission made changes to the IH1 Zone, adopting, with some tweaks, most of the changes requested by Sheldon Stein of New York-based Ranger Properties, who at the time was planning to redevelop the factory but has since dropped out of the project, reportedly for health reasons. He was later released as a party in the appeal. The legal proceeding, however, continued because the changes would affect how a future development plan could be crafted.

The changes were considered text amendments, with corresponding changes to the master plan for the zone. While it contemplated new buildings and a mixed-use plan, Stein did not get to the stage of a specific site plan with construction-level details.

The appeal

In September of 2021, Tyler Nye of Scranton, Pa., who owns 15-17 Spring St. in Collinsville, filed the administrative appeal to those zoning changes, alleging the commission acted “illegally, arbitrarily, or capriciously and abused its discretion” in making the changes and didn’t consider potential “negative effects” or “feasible and prudent alternatives.”  

One section of the appeal alleges the changes were done to maximize profits and reduce risk for those looking to re-develop the property, while compromising public safety.

The appeal also alleges the commission did not “reasonably” consider the historic nature of the complex and result in reduced regulatory oversight.

For example, the appeal, along with Feb. 15, 2023 court arguments from Nye’s attorney, Graham W. Moller of Cramer and Anderson in New Milford, references a reduction in special permits needed for a project to move forward.

The appeal, in one section, states that the changes allow “Any earthwork and grading ‘regardless of volume’ to occur without the need for the applicant to obtain a special permit under Sections 6.2 (‘Flood Plain Management’) and/or 7.5 (‘Earthwork and Grading’) of the Regulations.” 

During the summer 2021 process, members of the development team said their request involved clarifying that special permits referenced in other zoning sections are not needed for the IH1 zone. But, they said it was a question of process, arguing that while they might not need to obtain separate permits – potentially on several different occasions - they would be subject to all the zoning regulations standards during the site planning process. The development team also pointed out that other agency approvals would be needed.

The new language in the regulations for the zone states that while a special permit is not required, “All earthwork and grading shall be consistent with the purpose of Zoning; provide for restoration and development of the property; comply with the standards of Section 6.2 and 7.5; and, where applicable, obtain a permit from the Canton IWWA (Inland Wetlands and Watercourses Agency).” 

The decision

A Feb. 1, 2024, memorandum of decision from Connecticut Superior Court Judge Edward V. O'Hanlan disputes many of Nye’s claims and agrees that the public would still have input.

“Sections 1 and 3 of the amendments to the IH-1 zone clarify that the permitted uses are subject to site plan review… This is not a change from the previous version of the regulations. The IH-1 zone is, however, a design district subcategory, which requires a public hearing… Thus, the public would be able to participate in a public hearing on the site plan application according to the regulations.”

In addition to Moller’s central argument that the changes were made to quell public input, he also said they came solely to benefit Stein’s bottom line.  

“The record doesn’t support that that decision was made for the public’s interest,” Moller said in court last February. “The record supports, in the comments from commissioners during discussion in August of 2021 … that the amendments were ultimately adopted to benefit Mr. Stein economically, to benefit him in order to pursue sort of development by any means necessary at the exclusion of consideration of the public’s interests.” 

Regarding the benefit to the developer, the judge wrote, in part, “Zoning law in Connecticut has long recognized that ‘the commission cannot be said to have acted unreasonably or arbitrarily merely because the petitioner receives an incidental benefit, so long as the change in addition benefits the community as a whole.’” Parks v. Planning & Zoning Board, 178 Conn. 657,662 (1979).

The judge also said the commission considered the interests of the public.

In another section, he writes, “In the present case, the record is replete with references that the commission was balancing the benefit to the community as a whole in the rehabilitation of the history property against the costs of the developer.”

The judge also said evidence showed the commission met the “two-pronged test” of “being in accord with the town’s comprehensive plan” and being “reasonably related” to the power given the town under the state’s zoning act.

The judge also addressed the special permits, and asserted that, despite the initial apprehension of some residents and commissioners, that the conversation progressed, and the vote was unanimous. The judge also disagrees with the appeal’s assertion that the concerns were “ignored or overruled.”

“Indeed, a fair reading of the transcript of the public hearing and the deliberations of the commission reveals that, as the deliberations progressed, the commission came to a consensus – notwithstanding the effect, as noted, on the prior procedures that plaintiff has appealed to retain – that the proposed amendments in fact were addressing an important and perceived need for the community and site … In his appeal, plaintiff fails to mention the progression of the discussion and its effect on the deliberation by the commission.”

Regardless, it is not for the court to retry or to second guess the commission’s legislative decision; rather, the court must simply determine whether the record reasonably supports it,” the judge added, citing several previous court cases.

The judge, however, does express some concern when it comes to special permits, noting that a site plan only considered compliance to the regulations, while a special permit can also include other factors such as public and property values, and whether a use is expressly permitted.

He later addressed the floodplain management and earthwork in relation to a special permit.   

“In approving Stein’s amendments, it is unclear how much discretion over floodplain management and earthwork and grading the commission has chosen to forego. Some of these issues will, as the commission points out, be considered by the Canton Inland Wetlands and Watercourses Agency. Nevertheless, the property is undeniably in the floodplain … Moreover, the site is contaminated and within a special flood hazard area …. Thus, it must be said that the commissioners’ and the citizens’ concerns for this environmentally sensitive site and some of the commissioners’ apprehension – expressed in the public hearing and the deliberations, but not in the vote – regarding the change in its discretion in conducting its administrative review of what will now be a different developer’s proposal as a site plan instead of a special permit, are not unfounded.”

In totality, however, the memorandum from the judge, asserts that the plaintiff did not meet the burden necessary in the case.

“In Sum, plaintiff has failed to sustain his burden to prove that the commission acted illegally, arbitrarily or in abuse of its discretion in amending its regulations The record, including written submissions, the public hearing and the deliberations of the commission reflects the intended legislative process of a zoning board – confronted with deteriorating conditions on an important site that it had expressly targeted for redevelopment without success over a period of approximately 50 years – pondering a new redevelopment idea with proposed text amendments and discussing them as it perceived the circumstances and the interests of the community to be. It is clear that the legislature intended, subject to certain underlying principles, that finding solutions to zoning questions should be left to local authority. Morningside Assn. v. Planning & Zoning Board, 162 Conn. 154. 163 (1972)."

Nye's attorney did not return a message seeking comment. On Feb. 16, however, he filed a request for an extension in the appeal period from Feb. 21 to March 12. While that doesn't assure an appeal, the document raises the possibility.

"In this case, good cause is shown by the need to provide potential appellate counsel with the time necessary to examine the record to determine whether there are meritorious issues that can be raised on appeal," Moller wrote. "Plaintiff further contends that granting the extension sought herein will promote judicial economy. Without the extension Plaintiff would be compelled to file an appeal to protect its appellate rights. In contrast, providing an extension of time to appeal will ensure that an appeal is not filed unless there is a good faith basis for doing so."

On Feb. 20, the judge granted the request for an extension of the appeal period.

See documents related to the case here.