Maybe Costco isn’t dead after all.
The Planning and Zoning Commission extended the two year deadline to apply for a site plan by a year in a split vote, 3-2, as news of ongoing negotiations between property owners and Costco was publicly disclosed Thursday night.
Costco notified the town is was withdrawing earlier this year after a contentious process that included multiple lawsuits regarding new regulations pushed through by departing Inland Wetland Commissioners, and Costco withdrawing an application after it was revealed that the then ILW chairman worked to alter a peer review report that was initially favorable to the plan to against it.
In 2015, Planning and Zoning passed the Planned Development District, or PDD, that would allow Costco on a site owned by Wayne Cooke and his family. According to the zoning laws, the applicants have 24 months to file a site plan, and 5 years to complete the project.
Attorney Kevin Crusadean, representing Charles Weber who owns parcels in the PDD, acknowledged that the regulations to not specifically state the Commission may extend the deadline, and do not specifically state they may not. He stated the issues included the project being complex, having multiple property owners, and major issues in additional approvals.
Those issues include a need to change power lines, something property owners have been working on with Eversource.
From the viewpoint of the Commissioners, the question was one of procedure, not the merits. All agreed the extension was no issue, and they are often granted in other areas; it was likely an oversight such a provision is not included for a PDD. However, a ruling is subject to appeal, something that town attorney Bill Aniskovich made clear.
“This puts us in a grey area of the law,” he said. Aniskovich referred to a memo write by Danielle Bercry or Brenner, Saltzman and Wallman, which shows conflicting regulations, some that allows extensions, like on the 5 year limit to complete a PDD “after public hearing for good cause demonstrated to the satisfaction of the Commission.”
“Unlike other areas of your regulations that specifically authorize you to grant extensions, this section does not contain that language to grant an extension of the 24 month period. So wile it may make common sense, given the time frames that are laid out in various sections of your regulations, the legal question is do you have the authority under the regulations to grant the extension, and frankly, the simple answer to that is no; …there is nothing in your regulations that authorize you to rant an extension.
‘There is also nothing in your regulations that prohibits you from granting an extention.”
For Aniskovich, it was impossible to give an interpretation of a regulation that doesn’t actually exist; and he stopped short of “reading into the regulation” on behalf of the Commission. Essentially, the Commission would need to determine that on their own.
“Having said that, the Commission can do whatever it wants, subject to an appeal,” he said. “I would not be doing my job if I didn’t tell you that granting the extension where there is no expressed authority I your regulations or in a statute opens the Commission up to a vulnerability. That’s not to suggest that a court would overturn your decision, but it is vulnerable.”
Chairman Chuck Andres had no issue with the merits of the extension. “I would say, yeah, not a problem. The standard in my mind is has there been a change in circumstances, has there been a change in the law, has there been a maor development of a place, are there other things that would make it different…things really haven’t changed. I would not have any problem granting an extension…that said, I do have a problem seeing that we have the authority in the regulations.”
“That’s the problem I’m having, we don’t have it in our regulations,” he said. “That said, we probably should.”
Andres concerns was shared by other Commissioners, and the issue because judging the intent of the regulations, which would clearly allow an extension, and the letter of the law, which does not expressly state an extension can be granted for the 2 year filing limit, but does state an extension can be granted in other areas, including the 5 year limit to conclude a PDD application.
Andres suggested an amendment adding the authority, and potentially making it retroactive, something that Commissioner Marcia Palluzzi agreed with.
“Given the specifics of this case, you’ve got a number of property owners, which is highly unusual…when I factor in what happened with the wetlands situation, they haven’t been given due process, and they are being penalized for it in our inability to authorize an extension.”
Commission Joe Chadwick felt the same.
“We have the option to review every place else, we do not have a clear and compelling reason to not do it here, except for the fact of whatever drafting error, whatever fell out of someone’s word processor…I can’t find a reason to say why we shouldn’t do it.”
“We do this with all the other situations, said Commissioner Joe Vaiouso. “He’s asking for one year, that’s not unreasonable.”
Ultimately, the Commission felt that the request was reasonable, and voted 3-2 to allow the extension, with the sides split on the authority issue. Voting for was Palluzzi, Chawick and Vaiouso; voting against was Andres and John Lust.
While opponents of the Costco plan were successful in getting the withdrawl from Inland Wetlands, first selectman Jamie Cosgrove continued to reach out to Costco, and property owners kept a dialogue open. But the delays and actions of opponents, like the Branford Citizens for Responsible Development (BCRD), a group formed to stop Costco, and the Branford Land Trust, costs escalated. In their application, Costco spent tens of thousands responding to inaccurate filings and delay tactics from both groups, and ultimately actions by ILW chairman Daniel Shapiro and Diana Ross, whose actions were exposed in an email trail exposed as part of a BranordSeven.com investigation, led to Costco realization that it could not get a fair hearing.
Since then, Cosgrove cleaned up the Inland Wetlands board, including letting Shapiro go when his term was concluded. But before that term ended, Shapiro and his supporters on the Commission rushed through new regulation, making applications even more difficult.
Immediately, four separate lawsuits were filed by town property owners, and a lengthy process ensued where the new regs were rescinded, and then done properly. But the process denied Costco a fair hearing, and delayed the process for over a year in total.
Ultimately, Costco sent a letter to town hall, stating they were pulling out of the potential exit 56 location.
From here, opponents have a right to appeal the decision, but it would likely make little difference. An appeal would essentially stay the decision, meaning that even if an appeal was successful, Costco and the property owners would still have time to file. The appeals process would simply give them time to prepare an application, if that is the intention.
According to sources, the issues now are cost. The initial plan, if approved, would have included Costco making improvement to local roads and exits, at their own expense, it is unclear if that has changed. Costco’s initial application also requested no tax breaks, but with the added costs due to opposition and the actions of the Inland Wetlands Commission in their application, it is unclear if they would be looking for tax breaks in a new application. And the actual cost of the land is something that is still part of the negotiations.
We will have more information as it comes in.