Protect the Partrick Wetlands
There were signs the application, just a few hours from being closed, was having an effect on the parties involved. Early in the meeting, Commissioner Michael Stashower, who normally moves gracefully, tripped over something on the floor as he got up from his seat to grab some additional paperwork.
Michael Bologna, an attorney representing more than a halfdozen neighbors who are against the project as proposed, showed up for the first time with a 5 o'clock shadow. He apologized to the commission for not being as neatly groomed as usual. He said he never expected when then proceedings started in May that he would still be speaking in front of the commission two days shy of July 4.
Larry Weisman, the attorney representing ARS Partners, expressed anger at First Selectwoman Diane Goss Farrell, who was sitting in the audience, because of a letter.
Weisman was apparently upset by Farrell's letter to the commission, sent several days before the meeting, advocating further environmental study be conducted on the 58-acre site.
"It was presumptuous, outrageous and political for Farrell to write that letter," said Weisman. "It's illegal," as well as "improper for her to have done that." Weisman said, adding if the project is denied by the P&Z, her letter will be one issue raised if any appeal is taken.
"She has no right, by suggestion, to tell you how you ought to dispose of this application," said Weisman.
Town Attorney Ira Bloom spoke with the Westport News the next afternoon and said the letter Farrell wrote was perfectly within her rights.
"The cases are very clear, the first selectwoman can speak out on important issues facing the town," said Bloom.
Neighbors are hoping the application will be denied, among other reasons, because the property is not on a major thoroughfare. The applicant had been instructed by P&Z staff to base its development on the 1960 Town Plan, which was thoroughfare. The lines highlighting secondary and major thoroughfares are very similar.
According to the OSRD regulations, developments in the zone must have principal access to an arterial road or major thoroughfare. Eight of the homes on the proposed site have direct access to Partrick Road but not Newtown Turnpike, because of the complexities of the site.
"You should deny this because it does not comply with your regulations," said Bologna. While he believes it must be denied because the 1960 Town Plan does not classify Par-trick Road as a major thoroughfare, if Bloom is correct in his assumption that road designations can be based off the 1960 Town Plan, Bologna is of the opinion that road designations should be based off the town plan currently in effect. Bologna asked "why have a town plan if you can't use it?" The 1997 Town Plan of Conservation and Development lists Newtown Turnpike and Partrick Road as collector roads.
Bloom told the P&Z that given the overall history of the site, a judge might not look favorably on a denial based on Partrick Road not being a major thoroughfare.
In a prior meeting, Weisman hypothetically asked the commission if the former F.D. Rich site does meet the requirements of an OSRD zone, "then what is it?"
As for contaminants, Weisman said if any additional arsenic is found on the property during construction, it would be removed from the site. Neighbors against the project argued the development was not designed to meet the spirit of the OSRD regulations. Twenty-two homes are being built on nine acres of land and there is no centralized common area for residents. Some of the proposed "usable open space" circles are behind residents' backyards, noted Partrick Wetlands Preservation Fund Director Matthew Mandell.
"Wouldn't it have made sense to build a play space where there's no fear of breaking a window instead of a crop circle in somebody's backyard where [people won't feel] comfortable going ... ?' said Mandell.
Weisman failed to provide the P&Z with copies of the deed restrictions it had been asking for for weeks.
Bloom told the commission any decision made on the application must be based on substantial evidence in the record. The previous week, when some commission members wanted time to have an independent expert conduct an environmental review of the property, Weisman refused to withdraw his application and re-submit it to allow that.
On Wednesday, a couple commissioners asked Bloom if it was alright to deny the application without prejudice, with the hope the applicant would re-submit the application, thus getting time for an independent review. Bloom said even for a denial without prejudice, the commission would need to identify very specific concerns where further review must take place. He added that "the courts have frowned upon" denials without prejudice. However, the P&Z, has in the past denied applications without prejudice, though they were not as controversial as The Reserve at Poplar Plains.
Commissioner Michael Stashower asked what might happen if the application was denied without prejudice and not re-submitted and Weisman appealed the ruling.
"If the judge didn't agree with your denial, he has different options," said Bloom. "He could require that the application be granted or he could send it back for further review. If the evidence only suggests one conclusion, the judge could order that."
According to P&Z Director Katherine Barnard, the zoning board must come to a decision on the application by Sept. 5.