Costco Opponents Look To The Law

Saying the massive Costco application is “reasonably likely” to affect air, water or other natural resources, a group known as the Branford Citizens for Responsible Development (BCRD) has formally served notice on Costco’s attorney that it planned to seek intervener status under the Connecticut Environmental Protection Act of 1971.

Before the third session of the Costco public hearing took place last Thursday night, the BCRD informed Thomas P. Cody, Costco’s attorney, that it was seeking legal status as an intervener for a proposed master plan for development of 44 acres off East Industrial Road at Exit 56 off I-95.

While the intervener issue was not discussed publicly at the Costco hearing, it is a potential game-changer in the Planning and Zoning (P&Z) hearing process now underway. The fourth and possibly final session of the public hearing takes place Thursday, May 7, at 7 p.m. at Branford High School. 

According to the master plan, the first phase of the project would be the construction of a 158,070 square-foot Costco store on about 22 acres at 572 E. Main St. owned by Wayne Cooke and the Cooke family. That square-footage also includes a gas station with eight pump islands and 16 hoses. In addition to Costco, the Costco Plaza calls for seven additional proposed buildings. 

In a filing verified by Bill Horne, the group’s technical adviser, and signed by the group’s attorney, Keith Ainsworth (top photo), Horne states that the proposed Costco development off Exit 56 could have the effect of “unreasonably polluting, impairing or destroying the public trust in the air, water and other natural resources.” Horne’s verified petition was filed at the P&Z office at Town Hall a week ago.

Ainsworth says in his eight-page petition to intervene that the proposed Master Plan “shows large areas of construction and impervious surface within the Inland Wetlands upland review area, fails to provide adequate vegetated buffers between impervious surfaces and wetlands and watercourses and fails to incorporate water quality treatment techniques that are capable of achieving the necessary level of water quality.”

When a verified application has been filed, intervention is a matter of statutory right, Ainsworth said in his petition. Ainsworth is a partner with Evans, Feldman & Ainsworth in New Haven. He is currently chair of the CT Bar Association’s Environmental Law section.

Those familiar with the zoning process say intervener status sends a strong signal that the BCRD is serious. Costco is now on notice that the BCRD will file an appeal in Superior Court at some point should the issues not be addressed or should other reasons be determined. 

Once filed, the developer must address the issues raised by the BCRD. The practical aspect of the petition means that the BCRD and its attorney will be given written notice of all mailings and hearings “as well as all negotiations pertaining to the application.”

Under Connecticut statute “any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.”

The BCRD considers itself an organization of voluntary community members. Horne is a person with expertise in this area who has signed the verified pleading.

According to the filing, there are alternatives that could resolve the environmental issues such as reducing the amount of impervious cover; reducing the intensity of retail uses to reduce traffic; and relocating a redesigned PDD to a more appropriate location. Cody rejected a change of location, said nothing about reducing the intensity of retail uses but did reduce the amount of impervious cover.   

The opposition filing cites several reasons the master plan could have an adverse effect on wetlands and storm water runoff – an increase in impervious surface from the maximum of 60 percent to 76 percent; construction in the upland review area near wetlands, inadequate vegetated buffers; and failure to utilize modern water quality treatment techniques. It also says the proposal would intensify traffic, which could increase air pollution.

Horne raised a series of environmental issues at the April 16 P&Z session, and is acting as the natural resources consultant to BCRD.  Click here to read about Horne’s April 16 presentation. 

At last week’s hearing, Cody (pictured) said the initial plans included 76 percent impervious surface area ratio for the Connecticut Shellfish Company lot, but that the remaining area would be 65 percent. Cody, a land use expert, is a partner with the law firm of Robinson & Cole. 

“A number of speakers didn’t believe that,” he said. “It was suggested we intended to have 76 percent across the entire site; that’s not true.”

He said the developers decided to revise the application to lower the amount of impervious coverage by adding about one-third of an acre to the Shellfish Company lot.

“We have amended the application to provide for 65 percent impervious surface area ratio,” across the whole PDD, Cody said.

Branford’s zoning regulations stipulate no more than 60 percent impervious surface area ratio in IG-2 zones.

Horne Reacts

Asked about Cody’s statement that the impervious surface area of the project would be 65 percent and not 76 percent, Horne said in an interview that “reducing the requested maximum impervious surface from 76% to 65% eliminates the prospect of a property owner trying to go to the higher level in the future, but 65% is still too high. 

“The request to allow 65% impervious surface will inevitably increase the contamination of storm water leaving the site over what would happen with the current zone standard of 60%.” He said that “the new materials submitted have not addressed the need to reduce storm water contamination in any meaningful way,” Horne said.

“I’m still concerned by the presence of large amounts of disturbance and parking lot area proposed in the wetland upland review areas, especially the locating of parking areas mere feet from the pond and wetlands, and that the applicant is still relying on methods that the Connecticut Storm water Quality Manual considers incapable of attaining the necessary water quality.”

“The materials Costco filed on April 28 still show massive paving and disturbance close to wetlands and the pond, making it impossible to provide the 100-foot undisturbed upland buffer that the Connecticut Storm water Quality Manual recommends as the minimum adequate buffer width,” Horne said.

“John Mancini (the Costco engineer) has a lot of personal experience with Branford’s Inland Wetlands Commission, and he must know that this plan has very little chance of getting a wetlands permit,” Horne said after last week’s hearing.

Horne also cites references to the “high-volume traffic dependent uses” of the Costco Plaza and adjacent roads, which, he says, runs counter to the town’s Plan of Conservation and Development.” The POCD is considered part of P&Z’s regulations.
 

Supermajority Vote Fails

In another legal development, property abutters within 500 feet of the Costco property, including TravelCenters of America, which owns the truck stop acres and property abutters where the Lobster Pot restaurant and Citizens Bank are built, filed official letters of protest with the P&Z. Combined the two property owners had sufficient acreage to trigger a state statute that requires a supermajority of the P&Z to adopt a Master Plan. 

According to the Connecticut General Statutes, Section 8-3(b), the boundaries of zoning districts shall be “established, changed or repealed only by a majority vote of all the members of the Planning & Zoning Commission. However, if a protest against a proposed change is filed at or before a hearing with the Commission and is signed by the owners of 20 percent or more of the area of the lots affected by the proposed change, then any change must be adopted by a vote of two-thirds (2/3) of all the members of the Commission.”

This would have meant that four out of five members instead of three out of five members would be needed to approve the PDD. But all that changed at last week’s meeting when Cody told the audience that TravelCenters of America had decided to pull their protest. 

That left only one other protestor, Jonathan Smith, the owner of 560 East Main St. and 568 E. Main St., a parcel of 4.5 acres of property where the Lobster Pot restaurant and the Citizens Bank lie. And while Smith may still oppose the Costco project, the acreage is too small to trigger the statute.

Cody did not say what prompted the Travel Center to withdraw its protest letter. In the company’s letter, Kyle Raynor, the real estate manager for TravelCenters of America, outlined the reasons for protesting the PDD and the Master Plan. 

“I note that the protest is primarily due to the lack of sufficient traffic mitigation at the proposed development entrance across the street from TravelCenters of America driveway. We oppose any proposal that will overburden the existing roadways and inconvenience the surrounding businesses and residents without adequate upgrades to the traffic system being made. We reserve all rights available at law and in equity.” 

Presumably TravelCenters worked out its differences with Costco’s engineers. Other potential abutters, say, for example, Stop & Shop, did not sign protest letters.

Cody explained to the P&Z that their voting remains the same, meaning only a majority of the five-member board must approve the Costco project, which means three out of five P&Z members.

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