Simsbury Zoning Commission approves draft settlement with Vessel

Thursday Feb. 29 update: A Superior Court Judge approved this settlement, as well as matters related to an Inland Wetlands appeal. More details to come.

By John Fitts

Staff Writer

SIMSBURY – The town’s Zoning Commission on Feb. 21 approved a proposed settlement with a company looking to build an apartment complex on a 1.9-acre parcel at 446 Hopmeadow St.

While additional steps remain, that brings Vessel RE Holdings one step closer to building a complex at the site, a project that would now include 48 units in a brown, three-story building. The project would set aside 30 percent of the units as affordable under state statute 8-30g. At least half of those set-aside units must be for those with incomes equal or less than 60 % of the area or state median income. The balance of the affordable units can be for those making equal or less than 80 % of the median income. The law stipulates those units must be set aside for 40 years.

It was May of 2023 when the commission denied a revised site plan by Vessel Technologies for a project at 446 Hopmeadow St. that at the time in 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 sighted a health and safety risk to area residents, particularly related to parking.

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 percent of its housing stock deemed affordable carry the burden of proof in court. The 2022 list on the state web site lists the town at 5.08%.

At the Feb. 21 meeting, the town’s attorney, Robert DeCrescenzo of Updike, Kelly & Spellacy, noted that the appeal was filed in May of 2023 and placed on the court’s land use docket the following month.

“Since that time there have been a series of discussions about the settlement of the land use appeal, which the statute itself encourages the commission to do. Under 8-30g, as I am sure you are aware, the commission has the obligation to consider alternatives to the project that was denied.”

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, the court papers add. (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).

An agreement in principle was reached in January, with the commission agreeing on Jan. 30 to present the proposed settlement at a future meeting, the document states.

Under a revised agreement – which still needs court approval – the project would involve 48 units in a three-story building. The color palette of the structure would be brown, as opposed to the original white.

Under the latest draft agreement, the number of total parking spaces would be 60. A provision for an additional 14 spaces would be held in reserve for future use if needed. Areas where the parking was reduced would be used for additional buffering.

The agreement 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.

From here, attorneys for the town and Vessel will file a joint motion to present to Superior Court Judge Edward V. O'Hanlan. A remote hearing on that matter was set to be heard on Feb. 29 at 10:30 a.m. A pending inland wetlands appeal related to the project was also set to be heard at that time. (The Valley Press went to print prior to that hearing).

“Judge O’Hanlan will be looking to make sure it’s a fair, objective, and so-called arms-length agreement, that it’s a complete agreement, that no terms should be in there that were omitted and vice versa,” Vessel’s attorney, Timothy S. Hollister of Hinckley Allen & Snyder, told the commission. “I do want to thank the commission for the time that you invested in this. I want to thank [Simsbury Planning & Community Development Director George K. McGregor] and attorney DeCrescenzo, who’ve also put a lot of time into the resolution, and you all know the definition of a good settlement – nobody’s happy but everyone accepts it - and that’s, I think, where we are.”

If the agreement is approved by the judge, it becomes a court order and its terms are binding, DeCrescenzo said.

“The commission and the public would never have to worry that it would become four stories again or something like that,” he said. “It would be part of the court order and it would be a violation of the court order, which is a very serious matter if anything but that were be built by anybody. I know it’s not Vessel’s intention to do anything but comply fully with the stipulations.”

At its Feb 21 meeting, the commission unanimously approved the draft settlement, after which the public had the chance to speak. Several attendees were highly critical of the decision, the project and the state.

“There are some key issues that have never been solved,” said Ann McDonald, who lives adjacent to the parcel. We never said we wouldn’t compromise on something. We know everybody’s hands are being tied on this. We’re being pressured into it.”

McDonald said the project will have numerous impacts. Already, water flows at a high rate on to her property, said McDonald, contending it would only get worse with runoff from the parking lot and roofline, topography challenges, and what she alleged was an inadequate stormwater system.

McDonald also contended the project was still too big for the parcel, asserted there would be ecological damage, and said the plan has serious flaws for emergency access – including using the Farmington Canal Heritage Trail, which isn’t cleared in the winter, as a second point of entry.

“It’s very frustrating. We're not saying no. We’re saying make it reasonable and please don’t destroy our property. We’re not going to be able to get our money back,” McDonald said. “In 10 years when our whole bank is washed away, who do we sue? Do we go to the town because your engineers allowed it? Because you were pressured? Do we go to Vessel? They’re going to be long gone because it’s an LLC. They’re going to have sold it. They’re going to be gone – made their money and gone.”

Lori Boyko said the residents, taxpayers and electors should know more about why the decision was made.

“I think we should know why. We had six people vote in favor of the settlement. For proper reasons, the discussions about the matter were held in executive session so we are not privileged to anything that was discussed in there. We all have this vision of this 8-30g cloud that the big boot of the big brother in Hartford stamps on our neck and says you have no choice, but that doesn’t answer why specifically the decision was made for six people to vote unanimously yes. That doesn’t explain for us what went into the decision.”

Joan Coe spoke more broadly about the state and the affordability law.

“First of all, this law is absolutely impossible to deal with. It’s just an invasion of a town, and what we have to do as a town – as our legislators – is to change the law,” said Joan Coe. “The law is so restrictive that there’s no way that this board, even if you wanted to, could do something about it. Every town is coming against the same problem, so it’s not a Simsbury problem. Vessel has taken on the law and decided how they can maximize their profits. It’s a business. You look at the law and you see how you can work the law. This is something that we cannot sustain and only through legislation can we do something about it.”

After those and several other members of the public spoke, commissioner Kate Beal said, “The call for some transparency as to how the decision was made and how we came to the settlement, I think that was maybe a reasonable request."

McGregor said he could certainly provide a staff report that detailed the process without disclosing details discussed in the executive session.

“I think it would be possible, maybe appropriate, to do a staff report,” DeCrescenzo added. “This is kind of an unusual process that people aren’t familiar with and sort of outlines not necessarily the specifics of the executive session, but the choices the commission was faced with and how you all came to the conclusion you did that the settlement was in the best interest of the town.”

During the meeting, Hollister noted that Vessel representative Josh Levy could not attend the meeting, but after the vote and public comment, Hollister expressed confidence in the project.

Regarding issues such as runoff and ecology, for example, he said, “The wetlands commission approved it and the town engineer reviewed it thoroughly, but I took very detailed notes, and I will bring them all back to my client and make sure they have the input.”

The remote court hearing with Judge Edward V. O'Hanlan is set to be heard on Feb. 29 at 10:30 a.m. A pending inland wetlands appeal related to the project is also set to be heard at that time. Members of the public who would like to participate should visit https://jud.ct.gov/PublicAccess/ From there, along the left side of the page (in the blue), click on “Civil and Housing Livestreams,” then “Hartford.” This will give you a list of all the virtual proceedings for the day in Hartford.  Find the case name and click on the YouTube link for the virtual courtroom - likely number 4.  The links for the next day are uploaded after 7 p.m. the day before.

Below are renderings of the building and site plan included in the latest Zoning Commission packet.