Judge doesn’t allow waiving of zoning conditions, proposal seeks to eliminate the conditions

Fairfield District Superior Court Judge Dale W. Radcliffe’s decision in April, finding an excavation and filling permit issued by the Monroe Planning and Zoning Commission for extensive site work at 64 Cambridge Drive to be invalid, has sparked a proposal to modify a section of the town’s regulations.

Radcliffe found that section 6.4.23 of the Monroe Zoning Regulations, which the commission based its decision on, provides no specific criteria to allow for waivers it granted to the applicant.

Kevin Solli, principal of Solli Engineering LLC in Monroe, which represented the developer who sought the permit, filed a petition application proposing a regulation amendment to eliminate the waiver exceptions as conditions under section 6.4.23 of the town’s regulations for excavation and filling permits.

“Case law from recent court decisions shows a clear message from state statutes and the courts that only ZBAs can waive zoning regulations,” Solli said of municipalities’ zoning boards of appeals.

Solli claims the conditions eliminated under the proposal are “things historically waived”. He said the amendment is based on other towns’ regulations and is from working with town staff and the town attorney.

Joel Z. Green, the attorney for Peter Metropoulos, trustee to The Thomas C. and Stella Maganas 1988 Family Trust, the owner of 36 Timothy Hill Road in Monroe, who appealed the commission’s approval of the permit, said he is unaware of anything in the records showing the conditions are historically waived.

He spoke in opposition of striking conditions. “How will you judge applications if you have no standards?” Green asked. “This is not the Wild West.”

A developer plans to resolve wetlands violations at 64 Cambridge and 4 Independence drives, two adjacent industrial properties in Monroe, by restoring wetlands damaged by a quarrying operation and to truck in over 27,000 dump truck loads of material to fill a massive hole it left behind.

Town land use approvals allowed the work, but Metropoulos, a neighboring property owner, citing environmental concerns over the site’s close proximity to the Pequonnock River watershed, filed an appeal at Fairfield District Superior Court in Bridgeport.

Radcliffe’s ruling upheld the Inland Wetlands Commission’s approval of the environmental remediation and wetlands restoration plan, but overturned the Planning and Zoning Commission’s approval of an excavation and fill permit.

Arnold Karp, managing partner of Astro Land Holdings LLC and Spacely Land Holdings LLC, which own the industrial sites, has said restoring the wetlands will address past violations and make way for commercial buildings, providing positive tax revenue for the town.

Empowering the P&Z Commission

At Thursday’s meeting, Solli said he believes the proposal allows the commission to view applications on a case-by-case basis. “It further empowers you without this waiver issue looming over your head,” he said.

Chairman Michael O’Reilly told his commission they need a change in language due to the judge’s decision.

“By changing it in this manner it would be under our control,” he said. “This way during each application going forward we would be able to say, ‘this is what you need to do in terms of grading and slope etc.'”

“With any application this commission would be able to decide what is required,” Solli said.

Judge Radcliffe cited the Monroe case, “MacKenzie v. Planning & Zoning Commission, in which an “Appellate Court observed that no provision in the General Statutes permits a zoning commission to vary the terms of its regulations on a case-by-case basis within a given district.”

The court also noted the power to provide elasticity in zoning regulations is given by statute to the zoning board of appeals.

The conditions Solli proposes eliminating are:

• No artificial slope greater than twenty-seven degrees (27°) to the horizontal (or maximum two (2) feet horizontal to one (1) foot vertical) shall be created.
• No change in contour shall be made within twenty-five (25) feet of any property line.
• No artificial slope greater than fourteen degrees (14°) to the horizontal (or maximum four feet horizontal to one foot vertical) shall be created within fifty feet of any property line.
• No artificial slope greater than fourteen degrees (14°) to the horizontal shall be created within fifty feet of any street line.

Under a section with restrictions on sorting, grading, crushing or other machinery for treatment or processing of material, the amendment would eliminate the line:

All permitted such activities regardless of permitted location shall not include, permit or involve materials from offsite locations.

Rick Schultz, the town’s planning and zoning administrator, said, he compared Monroe to three other communities he previously worked in and those municipalities “didn’t have this level of language” in its regulation.

“Monroe is unique and from what I can tell it wasn’t done with input from the town attorney,” he said of the town’s excavation and filling permit regulations.

Vice Chairman Bruno Maini asked if the changes sought by Solli were reviewed by the town attorney. Barbara Schellenberg, a land use attorney for the town, attended Thursday’s meeting remotely.

“Yes. This makes a lot of sense,” she said of the proposal. “I was here to discuss the most recent decision from Judge Radcliffe. These text amendments proposed are in accordance with the town’s comprehensive plan and POCD (Plan of Conservation and Development).”

“I believe this should have been in a subcommittee before it came here,” Commissioner Leon Ambrosey said, “because just to remove them affects the whole town.”

Solli disagreed. “It’s safe and fair. All it does is allow what was historically waived by the commission,” he said.

“When you come in with an application, you’re not mandated to follow these conditions because you removed them,” Ambrosey said. “By removing everything you don’t have to ask us anymore or go to the ZBA to get it done.”

Solli clarified they want to remove four conditions and modify another one, while keeping the rest of the regulation intact.

“We need to look at our regulations and compare with other communities and maybe streamline it,” Ambrosey said. “I don’t think we should just remove them, remove them and remove them. They were adopted for a reason.”

Dominic Smeraglino III, a commission alternate, said, “the town attorney and the planner, everyone is pretty much in favor of going this route and we still have control over it. I understand not wanting to eliminate and eliminate.”

“We’re not changing them or making them better for the town,” Ambrosey said. “We’re just removing them.”

During public comment, Derrick Talbot, of Windgate Circle, pointed out that the commission having more control over decisions of excavation and filling permits could go wrong in the future when the makeup of the commission changes.

“The towns I see have excavation and grading standards,” Green said. “It can’t be done on a case-by-case basis.”

Green said the commission cannot say one applicant can do something and another cannot.

He encouraged the commission to do more work on the regulation before agreeing to any changes. “Get the information so you can say to the citizens of Monroe, ‘we looked at this and am confident we made the right decision.’ Do the work and act deliberately.”

Attorney Steve Finn, who represents the owners of 64 Cambridge and 4 Independence drives, said, “6.4.8 of your regulations gives you a whole list of factors you can take into account. That gives you complete control on what you want to approve and not approve. You can condition every approval.”

“Your regulations are overly stringent,” he said, “because you have blanket provisions no one can get by without a waiver.”

“We aren’t proposing to eliminate all conditions, soil erosion, sediment control or anything else,” Solli said, “just a few specific conditions we don’t know the origin of and have traditionally been waived.”

Solli said those conditions are specific and, they believe, “onerous”. “This proposal is to remove requirements, not the regulations,” he said.

Green said the petition for a regulation amendment was not included in the meeting packet online, so he and the rest of the public could review it before Thursday’s meeting. It is currently included.

All respectful comments with the commenter’s first and last name are welcome.