#MiddleburyCT #MSTA #Appeal
By MARJORIE NEEDHAM
Middlebury’s Board of Selectmen (BoS) – Edward B. St. John, J. Paul Vance Sr., and Jennifer Mahr – voted 2-1 (St. John and Vance for, Mahr against) on Tuesday, February 18, to spend up to $8,000 to file a motion asking Superior Court Judge John L. Cordani to reconsider his January 31, 2025, decision in favor of the Middlebury Small Town Alliance (MSTA). The motion was filed on February 20, and Judge Cordani denied it on February 21.
The MSTA lawsuit appealed the Planning and Zoning (P&Z) and Conservation Commissions’ approvals of applications for the Southford Park project, a 700,000+ sq. ft. warehouse/distribution center at the corner of Southford and Christian Roads in Middlebury. The judge’s decision killed the project.
While lawyers refer to a “petition for certification” that is submitted to an appellate court, this article will use the word “appeal.” With the motion to reconsider denied, the town has limited time in which to appeal the case. It was granted an additional 20 days beyond a February 20 deadline in which to take action. That appears to give the town until March 12 to appeal or let the judge’s decision stand.
Because of that deadline, we expected the matter to be on the agenda for the Monday, March 3, Board of Selectmen meeting. It is not. However, the Monday meeting is a regular meeting, which means items can be added to the agenda, so it’s possible it will be discussed even though it is not on the published agenda.
The motion that was filed February 20 asked the judge to reconsider including a zoning regulation text amendment increasing building height (to 44′ from 35′) in the LI-200 zone in his decision that State Statue 8-3m applied to the project. It noted that the amendment applied to all LI-200 parcels, not just the Southford Park parcel. It also noted the MSTA had mentioned the text amendment only in its introductory paragraph in its complaint and since the text amendment applied to all LI-200 properties, it was not granting a permit to Southford Park. Finally, it said 8-3m cannot preclude a planning and zoning commission from granting a zone text amendment that is generally applicable and had not been argued in court because the plaintiff had abandoned it.
Judge Cordani’s response was an order stating the defendant raised issues and asserted arguments not previously raised or asserted. It said it is inappropriate to do this for the first time in a motion to re-argue and also that the motion did not cause the court to believe it should re-examine or revisit its decision.
A lengthy discussion on whether or not to appeal this decision took place at the February 18 BoS meeting. Submitting a motion to reconsider rather than appealing was chosen because it cost less and there was great resistance by the selectmen and residents to spending large sums of money appealing the decision, Attorneys James Strub and Gail McTaggart, asked to estimate the cost of an appeal, mentioned $30,000 to $40,000.
The attorneys explained in detail on February 18 that there were good reasons for appealing. Strub said one is that the judge decided the new state statute, 8-3m, sponsored by State Representative William Pizzuto, applied. He noted this is the first time the statute has been applied, and it has never undergone plenary review. Strub also said there were good arguments to support the votes of the Planning and Zoning and Conservation Commissions.
McTaggart mentioned the judge considering easements on abutting properties as part of the application and said the issue of the change in building height had gone unanswered. Strub said the veracity of the commissions’ processes needs to be protected.
P&Z Chairman Terry Smith said he strongly approved appealing because the judge’s decision would have global consequences. Conservation Commission member and town Zoning Enforcement Officer Curt Bosco said the CC had spent more than two years on the applications and the judge’s decision leaves some unanswered questions.
Vance asked what happens if the town does nothing. If the applicant appeals, the decision could be reversed. He also asked if there was a way to get questions answered other than with an appeal. Strub said “No.” McTaggart said appealing usually takes a year.
St. John said, “We have to support the commissions.” Vance said he doesn’t want to spend town tax dollars, but you have to make the commissions whole. He also said he was concerned the state would take over planning and zoning.
Mahr said there was a folder on the table with letters from residents saying they didn’t want an appeal, and hundreds of people showed up to many meetings over two years and said they didn’t want a distribution center in town. She asked Vance how he could set aside all those people because two commissions voted to appeal. Vance responded by saying there are two sides to every issue, and he needs to represent both sides. He said there are people in this town who support the project.
We encourage interested residents to attend the March 3 Board of Selectmen, either in person or via Zoom. The link to the Zoom meeting can be found on the meeting agenda posted under Board of Selectmen at www.middlebury-ct.org.
