Latest Costco Filing
UPDATE — The hearings for the 44-acre Costco commercial complex at Exit 56 may end this Thursday, and the deadline is nearing for the Inland Wetlands Commission (IWC) to make a decision.
Two of the questions the IWC will be weighing are whether the proposed Costco and seven other commercial buildings would adversely impact the wetlands — and whether “prudent and feasible alternatives” could lessen the impact. So far the occupants of the seven other commercial buildings have not been identified.
The considerations for decision-making are spelled out in Branford’s Inland Wetlands and Watercourses Regulations, which are posted on the department’s web site.
According to Thursday’s agenda, the hearing may close and deliberations could begin if time allows. The meeting will be held at 7:30 p.m. at Fire Headquarters. A special meeting could possibly be scheduled on April 28 to allow more time for deliberations. Timeframe regulations stipulate that a decision must be reached 35 days after the close of a public hearing.
Many of the official documents, letters and the hearing transcripts are posted on the Inland Wetlands web site.
Since the last meeting on March 10, Costco submitted another set of revised plans; the Costco team met at Town Hall with the town’s Inland Wetlands and Engineering staff and the peer review consultants from Milone & MacBroom Inc. (MMI); Costco’s attorney objected to the information about “average size” Costco warehouses that was discussed at last month’s hearing; and the attorney for the Branford Citizens for Responsible Development (BCRD) submitted his final brief with numerous objections to the project. The BCRD’s final brief was filed before the latest Costco revisions.
Keith Ainsworth, the BCRD attorney, wrote in that brief that in addition to the most recently revised set of plans, Costco had submitted four prior drafts to the commission.
“If an Applicant claims each time in succession that the application is compliant, yet revises it in response to substantive criticisms, one wonders if the Applicant is being truthful,” Ainsworth said.
Ainsworth and the BCRD’s consultant were prepared to speak at last month’s hearing but said they could wait until April because of the late hour.
Costco’s Latest Revision
The Costco team submitted a revised set of plans Thursday to the IWC — the fourth set of revisions since the original plans were filed. The team also submitted a series of 19 documents with responses to issues and questions raised by the commission, attorneys and consultants for the interveners, the peer review consultants, and the public. The revised plans show no change to the size of warehouse.
Costco attorney Thomas R. Cody is expected to address these issues when he takes the floor Thursday night.
Cody wrote in a cover letter dated April 7 that the team revised the plans “in response to requests from MMI, the commission, and others for refinements to the details and presentation of the site design on the plans. Thus, the plans included in this submission merely add details and supplemental information at the suggestion of others.” He emphasized these were not new plans, but revisions.
The 19 other documents include letters and memorandums that address specific issues that were previously raised, such as impacts to wetlands and stormwater discharge. There is also a memorandum from Costco’s legal team regarding the “feasible and prudent alternatives analysis.” These documents were not available for viewing Friday.
On the Law
Cody, a partner in the law firm of Robinson & Cole in Hartford, wrote that he was including a response to issues raised in the March 9 peer review letter “under protest.” In recent letters filed with the town, Cody questioned the process used to compile the March peer review letter, and he expressed concern about the IW staff’s questions about reducing the size of the proposed Costco warehouse. Cody was concerned, he said, about input from the IW staff and the IWC’s outside consultants, MMI.
Ainsworth’s brief noted that “proponents of the applications, and the Costco team, have suggested that the Commission’s staff improperly communicated” with MMI. He said this was not so, that these communications were “an ordinary, proper and legal function of the Commission.”
He reminded Cody of the case law derived from a series of Connecticut Supreme Court cases over the years, saying the state’s highest court has “approved the consideration of information by a local administrative agency supplied to it by its own technical or professional experts outside the confines of the administrative hearing.”
Costco Meets with Outside Consultants
After last month’s public hearing, the Costco team requested a meeting with the peer review consultants. The request was granted by IWC chair Daniel Shapiro, provided that the meeting include Diana Ross, the Inland Wetlands environmental director.
In attendance at the March 18 Town Hall meeting were: Costco team members Joe Montesano, engineer Michelle Carlson; drainage engineer Jessica Bates; and wetland scientist Michael Klein; the peer reviewers, engineer Darin Overton and wetland scientist Bill Root both of Milone & MacBroom; Diana Ross, and Town Engineer Janice Plaziak.
Ross, in a letter posted on the IWC site, said the discussion was mainly about stormwater drainage modeling, and she also stated that the applicant should be prepared to discuss possible alternative plans. The letters from Ross explained that there was an oversight and that she forgot to notify the attorneys for the intervenors about the meeting.
Carlson, of BL Companies, submitted minutes from the meeting, which are part of the official record. She wrote that the purpose of the meeting was to give the MMI consultants “an opportunity to get answers to questions that they have asked the applicant to address, as well as to clarify the scope of certain additional information that they have asked the applicant to provide….” This was in regard to the March 9 letter, which was discussed by the MMI consultants at last month’s hearing.
One topic concerned the feasible and prudent alternatives, which MMI mentioned in its March 9 letter. The minutes state: “Ms. Ross and Mr. Root stated that an analysis of alternatives with less impact was required.”
In response, “Mr. Klein pointed out that the applicant had explored numerous alternatives, even going so far as to determine that the counterintuitive alternative of turning the long axis of the building east-west required less work in the upland review area and wider setbacks to Wetland 1.”
Other issues involved drainage, stormwater management basins, and culverts. The parties reached agreement on some issues.
What is Feasible and Prudent?
Regulations require that IWC hearings involving major projects include a discussion of the size of the proposed project and the impact on wetlands.
At the October 9 IWC meeting, the commissioners made a list of items that the peer review consultants should look at, including a “review of prudent and feasible alternatives.”
Branford’s Inland Wetlands and Watercourses Regulations and state statues both specify what the IWC can take into consideration when making decisions. There is a list of issues that must be considered, including the environmental impact of the proposed project on wetlands or watercourses; and any ‘feasible and prudent alternatives” that would cause less impact.
In their application, the Costco team gave a summary of four alternative layouts for the project, and said they chose the one with the least impact on the wetlands.
Ainsworth said that Costco bears the burden “of proving no feasible and prudent alternatives exist.” In this case, he said, “applicants failed miserably.”
In the peer review presentation last month, MMI consultants Overton and Root said there are other alternatives to reduce the amount of impact on the wetlands. One option was to eliminate or relocate the 16 gas pumps; relocate a portion of the proposed access road; or reduce the size or number of buildings and parking lots.
The most recent revised plans submitted last week show the Costco building would be the same size as in previous plans, and the 16-pump gas station would be in the same location. (See top photo.)
The consultants also said the IW staff asked them to consider scenarios if the building was downsized to the average Costco size of 143,800 square-feet, (as listed on the corporate profile online). The Costco store being proposed for Branford is a 158,070 square-foot building. The MMI consultants said reducing the size would reduce the impact.
In a March 31 letter that is part of the record, attorney Cody said that the corporate analysis submitted for the record showing an average size of 143,800 square-feet was outdated. He asked that a different one be added to the official record.
Costco Filing
Here is a screen-shot of the analysis proposed by Cody. It shows measurements for 10 buildings, and lists an average size of 156,335 square feet. The only one larger than Branford’s proposed store was one built in 2012 in Washington D.C.
BCRD says the prototype Costco is about 10,000 square feet less than the proposed Branford project. Ainsworth says Costco’s desire is to maximize site development regardless of “impacts.”
Ainsworth pointed out the Costco planned for East Lyme, which is expected to open next year, is designed at 140,000 square feet.
“If Costco’s need or economic desire for a larger Costco results in wetlands impacts, then the property owner is attempting to construct an inappropriately large facility at this location and should choose a less intense use for this site dotted by wetlands,” Ainsworth says.
Given the vastly different Costco store sizes throughout the nation, Ainsworth said Costco has “feasible and prudent alternatives which it could employ at this site with fewer direct wetland impacts,” but said applicants chose not to provide those alternatives despite their having the legal burden to do so.
Ainsworth also noted Costco’s reaction to scaling back the project in order to protect a forest of mature trees, a forest that supports wildlife habitat for birds and insects. MMI recommended eliminating a first row of parking, approximately 20 spaces, to protect these trees.
“Again, the alternatives presented by the Applicants are simply more harmful versions of the same scale of development proposed. None of the alternatives discuss a smaller development as a way of avoided direct wetlands impact,” he wrote.
The Costco team submitted a second set of “feasible and prudent alternatives” in an April 7 memorandum, which was posted on the Inland Wetlands web site Monday afternoon. According to the narrative, the alternatives do not alter the overall site layout, but they would result in less disturbance to wetlands and buffers and would preserve more trees. The five alternatives include possibilities such as modifying retaining walls and modifying the orientation of parking spaces in various locations; and replacing a proposed living-slope wall with a modular wall.
The memorandum from Robinson & Cole law firm states the applicants believe that the chosen plans are feasible and prudent, and that the five additional alternatives would further minimize potential impacts to wetlands. It states: “The applicants leave to the Commission’s decision-making whether any or all of Alternatives 1 through 5 are preferable. The applicant would agree to a condition of approval that would require the plans to reflect any or all of the Alternatives 1 through 5.”
The memorandum also states that the gas station and the size of the proposed warehouse are integral to Costco’s business.
From BCRD’s point of view when it filed last week, the Costco application was incomplete because Costco has so far “failed to present the Commission with evidence of the likely chemical impact on the Wetlands, including salts, vehicle fluids, nitrogen, and other chemicals “which are reasonably to be expected in parking lot and rooftop areas,” Ainsworth wrote.
Additional letters addressing various issues were also posted Monday, and it is anticipated the Costco team will present them at Thursday’s hearing.
What Happens Next?
Inland wetland commissions are mandated by the state to protect wetlands and watercourses.
According to the local and state Inland Wetlands regulations, the commission must write on the record the reasons and bases for its decision regarding projects, and must incorporate a statement about the consideration of feasible and prudent alternatives. A permit cannot be issued unless the IWC finds, on the basis of the record, that a feasible and prudent alternate does not exist.
The regulations also state that if an application is denied, “the application shall not be resubmitted unless the proposal is modified in such a fashion that substantially changes the impacts which resulted in a denial.”
If the application is approved, the next step would be to file site plans with the Planning and Zoning (P&Z) Commission, at which time additional public hearings would be scheduled. The Planned Development District (PDD) and Master Plan were approved by the P&Z July 9 by a 3-2 vote.
Regardless of whether the IWC approves or denies the application, there are options for appeals to be filed in state Superior Court.
Ainsworth said BCRD’s positon is that Costco has submitted an incomplete application regarding anticipated chemical impact on the wetlands. Costco has also failed to reduce the size of the project. “For all of the foregoing reasons, the Commission “cannot approve these applications,” Ainsworth said in ending his final brief.
The proposed commercial complex includes Costco and seven commercial buildings on 44 acres at Exit 56. The three undeveloped properties include properties owned by Wayne Cooke and the Cooke family corporations who own a 22.36-acre site where Costco plans to build; Charles E. Weber Jr. and Al Secondino, and their 595 Corporate Circle corporation, who own a 16.56-acre parcel where six buildings are proposed; and trustee Peter G. Mandragouras, who owns a 1.73 acre site, where one building is proposed.
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