#MiddleburyCT #DistributionCenter #SouthfordPark #MSTA
By MARJORIE NEEDHAM
The Middlebury Small Town Alliance lawsuits challenging decisions by the Middlebury Conservation Commission and the Middlebury Planning and Zoning Commission approving the application for a distribution center on property at the corner of Southford and Christian Roads reached the oral arguments stage Monday, December 9, 2024. Attorneys for both sides presented their cases to Judge John L. Cordani in Waterbury Superior Court.
Attorney Keith Ainsworth represented the plaintiff (MSTA) while attorney Ned Fitzpatrick represented the defendant, Southford Park, and attorney Jim Strub represented the defendants, the Conservation Commission and the Planning and Zoning Commission.
Judge Cordani seemed to focus on two issues in his discussions with the attorneys: the new state law State Rep. William Pizzuto (R) tacked onto the state budget and the lot line revisions drawn by Southford Park after the new law went into effect.
That law said that, in municipalities with more than 6,000 but fewer than 8,000 people, neither the municipality nor one of its boards or commissions could approve the siting, construction, permitting, operation or use of a warehousing or distribution facility exceeding an area of 100,000 square feet if the facility was on less than 150 acres, contained more than five acres of wetlands and was not more than two miles from a public school.
Cordani said he found the plaintiffs classically aggrieved, but whether or not they were statutorily aggrieved was not clear. He asked Ainsworth if the new state law was passed strictly in response to this situation. Ainsworth responded, “I would think it was, yes.”
Regarding the lot line revisions, Ainsworth said the structures are now on Parcel A and the drainage facilities and driveways on Parcel B. He said the wetlands permitting spanned the original parcel; now half is on another parcel. The total wetlands for the original parcel is more than 5 acres.
Ainsworth also noted Middlebury’s zoning regulations say warehouses are permitted only “in conjunction with” manufacturing facilities. He said the commission approved an unapprovable use and allowed the applicant to break the lot into smaller parts to avoid holistic consideration. He also said that the P&Z was improperly constituted when it came to minority representation.
Regarding the minority representation issue, Strub said the minority member who was not there had died, and the person who was chosen to serve in his place had listened to all the recordings, but the person not chosen did not state they had listened to the tapes. He noted the vote was 3 for and 2 against, so the members were thinking for themselves.
Cordani asked Strub the intent of changing the lot line and how the new state law applied. Strub said P&Z and CC decided the new law didn’t apply.
Fitzpatrick told the judge the lot line was revised because the defendant’s intention was to comply with the new state law. He said the plaintiffs have not conceded the lot line revision is legal.
Fitzpatrick noted Southford Park had not applied for a trucking terminal and that the term “in conjunction” did not require manufacturing to be onsite.
Judge Cordani said he would render a decision as quickly as possible. As mentioned in the page 1 article in the December issue, judges have 120 days to render a decision, but some reach decisions fairly quickly.
On December 13, Judge Cordani issued an order to both parties, directing each to file a supplemental brief analyzing, “on a statutory element by statutory element basis,” the applicability of the new law (Connecticut General Statute 8-3m) to the project before the lot line revision and then after the lot line revision. Each brief must specify the acreage of wetlands on each parcel of land both before and after the lot line revision.
The supplemental brief must also provide a relevant history of the ownership of each parcel involved in the project from the time the earliest permit application for the project was submitted to the present. In addition, each brief must specify the location of each building, parking lot, driveway and drainage system as being located entirely on one specific parcel or spanning both parcels, both before and after the lot line revision.
The supplemental briefs are limited to 15 pages and must be filed on or before January 13, 2025.
On December 30, 2024, attorney Fitzpatrick filed a motion to supplement the record that included four exhibits: a certified copy of the lot line revision map recorded August 24, 2023; a copy of the limited warranty deed from Stacey J. Drubner to Southford Park LLC recorded August 28, 2023; a copy of the limited Warranty Deed from Timex Group USA to Southford Park LLC recorded August 28, 2023; and a copy of the limited warranty deed (statutory) from Southford Park LLC to Southford Park LLC merging two parcels into one parcel recorded August 28, 2023.
The supplement stated the defendant believes these are necessary and also will assist in response to the December 13 court order. It also requested permission to file a full size certified copy of the lot line revision map with the clerk of the court.
This reporter asked the plaintiff’s attorney, Ainsworth, about the supplement at the January 2 Planning and Zoning meeting. Ainsworth said he and Fitzpatrick had discussed the documents and agreed they would be helpful to Judge Cordani.
It appears all that remains before Cordani issues a ruling is for the supplemental briefs to be filed by January 13. Ainsworth said he expected Cordani’s ruling would be issued soon after that date.
