Town Engineer John Jacobson at the maps

Only seventeen members of the public attended the March 2 hearing on whether to permit a private developer to modify the town’s original 2005 plan to develop the Preserve. One hint that the hearing might not be too significant was the fact that the Counsel to the town Planning Commission, Mark Branse, did not attend.
 
In contacting Branse’s office as to why he did not attend the hearing, or even send a back up attorney, Eric Knapp, an attorney at Branse’s firm, said that he himself had been planning to attend the hearing. However, Old Saybrook Town Planner Christine Nelson told him that it was not necessary for him to attend. So, Knapp said, he took the meeting off his calendar.

When questioned, Nelson acknowledged that she had told Knapp that it was not necessary for him to attend the hearing. She also said that she had conferred with Commission Chairman Robert McIntyre, who had said that it was not necessary for an attorney from Branse’s firm to attend the hearing.

Still, the Commission should be credited with undertaking an exhaustive examination of the developer’s proposed, new nine lots from virtually every angle. Discussed were the impact on the vernal pools, roadway accessibility, roadway improvements, flood prevention, adequate septic and water systems, and other impacts on the original general plan for the development of the Preserve.

One member of the Commissioner, Robert D. Missel, however, was restive. He complained that he had not heard from the Commission’s counsel, since a memorandum by Attorney Branse dated January 13. Most especially, Missel said, “We need additional information on the February 16 memorandum of the developer’s counsel.”

Commissioner Robert Missel

In that February 16 memorandum, the developer’s counsel, David Royston, dramatically withdrew from the developer’s original modification proposal the plan to construct over 200 new homes on the site. Missel wanted to take up this overarching issue before going into the details of other land use questions.

Commission Chairman Robert McIntyre tried to sooth the dissident member. McIntyre said that perhaps the dramatic withdrawal of the new houses from the proposed modification should have been the first question considered at the

hearing.  The Chairman went on to assure Commissioner Missel that Attorney Branse would be present at the next Commission hearing. He also told Missel that there were other questions that could the resolved by the Commission without the attendance of counsel.

The Commission concluded the hearing with a discussion of when and where to hold the next meeting. It will be on Tuesday, March 8, in the first floor conference room in the Old Saybrook Town Hall. 

Chairman McIntyre said that the Commission must complete its deliberations by April 22, adding that if possible he would like to schedule committee meetings once a week, so as to make this deadline.

There was one final point that was made a number of times by Chairman McIntyre at the hearing. He said that when the Commission approves a particular element of the developer’s proposed modifications based on a condition, the Commission will rigorously demand that these conditions be met before final approval of the modifications will be granted.

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Where Bokum Road ends within the Preserve

There is another hearing coming up on whether the Old Saybrook Planning Commission should approve a modification of its 2005 development plan for the Preserve. This latest hearing will be held at the Old Saybrook Middle School, on Wednesday, March 2 at 7:30 p.m.

However, unlike the previous four hearings, where the general public and interested parties were invited to testify before the Planning Commission, only the members of the Commission will be allowed to speak at the March 2 hearing.  The general public will be permitted to listen to the Commissioners discussing among themselves whether to approve or disapprove the developer’s proposed modification of the Preserve’s original plan, but the time for a public voicing of opinions in these proceedings is over.

Also, unlike the four previous public hearings, during which many of the general public spoke out against the entire development plan approved back in 2005,  Commission members are expected to concentrate entirely on approving or not the modifications proposed by the developer, and not stray to the larger issue.

The Commission has a number of choices in dealing with the modification application of the developer. First it can give its full approval to the modifications proposed by the developer. This would mean that going forward, the original plan would reflect these changes. Second, the Commission could vote to reject the proposed modifications, which would leave the original plan in place, as it has been since 2005.

Also, should the Commission approve the proposed modifications, it even might  go a step further, and treat the adoption of the modifications as in themselves a first phase of a phased development. This in turn could trigger an obligation by the developer, as part of its first phase; to reserve all the open space in the original plan, as is required by the town’s land use regulations. The result would mean that 483 acres of the present site would be reserved in perpetuity as open space.

When it first proposed a modification of the original plan, the heart of the developer’s proposal was to build three stand-alone, housing clusters, which it called pods. However, on the day before the last hearing on February 16, the Attorney for the developer, David Royston, withdrew the request for permission to build the three, stand alone clusters of housing units. Attorney Royston also withdrew the developer’s earlier request for a deferral of roadway improvements in the 2005 plan.

However, even with these changes, the developer’s attorney left in place a request for a modification of the Bokum Road parcel so that it could contain 9 lots, as well as a request to install 30,000 gallon cisterns in each developed area for fire protection.

The Valley Railroad track within the Preserve

Also, Royston said the developer would assume responsibility for gaining approval for a crossing over the Valley Railroad State Park, even in the face of a written denial by the Department of Environmental Protection of such a crossing. The reason for taking this step, the developer’s attorney said, was because of ongoing discussions regarding the purchase of new property that will make the DEP denial of a park crossing a moot point.

It might be noted that Royston made no mention of gaining approvals by the Town of Westbrook, which the developer must obtain before it can construct a key access road to the project. Past and present First Selectmen of Westbrook have expressed their firm opposition to the entire Preserve project, and it is the developer’s full responsibility and not that of the Commission’s, to turn this attitude around in Westbrook, if indeed it can.

Finally, the developer’s Attorney Royston emphasized in his final memorandum to the Commission that the developer was not pursing a “phased development” by making its modification application. However, it could be argued that the Commission itself has the final say as to whether to characterize modifications requested by a developer as the first phase of a phased development, and not the developer.

In this case saying that the requested modifications do not constitute a first phase of a phased development does not necessarily make it so. Under this scenario the Commission would decide the question, if it chooses to consider it.

However, if the proposed changes in the developer’s modification application were indeed determined to be the first phase in a phased development, the developer might even decide to withdraw its entire modification application. If this were to happen, the original 2005 plan would remain intact, and the developer’s plans for the future would become an open question.

Another possible scenario is this. If the developer maintains that its proposed modifications are not the first phase of a phased development, a position with which the Commission disagrees, then the Commission could simply refuse to grant the developer’s application. Then, once again, it would be back to square one in the development of the Preserve.

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On Friday, Feb. 25  the Board of Selectmen of Old Saybrook held a special meeting in the Town Hall, at which  they issued an important proclamation.

The Proclamation designated Monday, Feb. 28 as Rare Disease Day to bring attention to the plight of people struggling with rare diseases in Old Saybrook and to raise awareness about these often undiagnosed or misdiagnosed diseases. 

A rare disease is one that affects fewer than 200,000 Americans.  There are nearly 7,000 such diseases affecting nearly 30 million Americans.  In this effort, the Town will be joining the National Organization for Rare Disorders (NORD) and others around the world in observing World Rare Disease Day.  On this day, millions of patients and their families will share their stories to focus a spotlight on rare diseases as an important global public health concern. 

Speakers at the Old Saybrook Selectmen’s meeting  included:

• Resident Eileen Radziunas, who has written a book about her years of misdiagnosis with Behcet’s Disease
• Residents Mark and Kristin Leopoldino whose daughter Avery (2) was diagnosed with CDKL5 and suffers daily seizures without a cure in sight.  Avery is the only child in Connecticut with this diagnosis although there are likely others who remain undiagnosed or misdiagnosed.  Details of a fund raiser to help this little girl will also be announced on Friday. 
• Social Services Coordinator Susan Consoli, LPC who will be bringing attention to Celiac Disease, of which she was recently diagnosed after years of misdiagnosis.  Currently it is estimated that 1 in 200 people have Celiac Disease while only 1 in 2000 are diagnosed with this auto-immune disease.
• Also attending will be Youth and Family Services Director Heather McNeil, LMFT, LADC who is the Town appointed Americans with Disability Act Coordinator.

For more information about the Special Meeting, please contact Susan Consoli at 860-395-3188 or via email at sconsoli@town.old-saybrook.ct.us.

For more background information about Rare Disease Day please visit the Rare Disease Day 2011 website at http://www.rarediseaseday.org  and the frequently asked questions section of the US Rare Disease Day website: at
http://rarediseaseday.us/wp-content/uploads/2011/02/RDD-Press-Kit-2011-FAQs.doc

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Attorney Mark Branse, Counsel to the Old Saybrook Planning Commission and author of article on conducting public hearings

Mark Branse, the attorney for the Old Saybrook Planning Commission, has written an article in an environmental group’s newsletter, suggesting proper rules of conduct for commissioners and the general public at hearings on controversial subjects. 

Attorney Branse must have had his own proposals in mind, when at the Planning Commission’s February 16 public hearing on the Preserve, he threatened to call the police, when he felt that members of the audience were getting out of hand.

Branse’s thoughtful article, entitled “Order in the Court,” was published in “The Habitat” of the Connecticut Association of Conservation and Inland Waterland Commissions.

Although Branse begins by citing a couple of court cases, one when a hearing officers used “foul language and threats” against an applicant, and another when an “atmosphere of hostility” was created, when an issue was made of the applicant’s ethnicity, his article is far from a dull recitation of zoning court cases.

Rather it is an easy to read summary of suggested rules that should be followed at town public hearings. 

Listed under “Be Prepared,” he gives the following advice to hearing chairmen.

• If you suspect trouble, have police on hand, preferably in uniform. Have more than one if any doubt at all and more on call.
• Have a large room – oversized in fact. Packing people together contributes to their anonymity and encourages heckling and shouting out (the “voice from the crowd.”) Have a board or other way to display plans, etc. It avoids having people call out, “I can’t see that.”
• Have an AV (audio visual) system. People will sit in the back row and shout, “I can’t hear.” Invite persons with hearing problems to sit in front of the room (they won’t.)
• Set out the rules of the game before the applicant ever stands up: “We will hear from the applicant; then questions from the Commission and staff; then those in favor; then those opposed; then those who don’t wish to be categorized as in favor or opposed. There will be no shouting, applause, booing, heckling, or other disturbance. Those who break these rules will be ejected from the meeting. There will be no exceptions.
• Explain what kind of preceding this is (wetlands, zoning, etc,) and what the criteria for review are. Have copies of those criteria available for distribution and ask people to address their comments to those criteria. . ….  And stick with it.

Under “Keep the lid on,” Branse writes, “Nothing spirals out of control faster than a mob mentality. You must react swiftly and decisively to the very first person who gets out of order.  Shout them down at once and explain that the next person who interrupts the proceeding will be ejected.”

He also writes, “Chairmen: Keep Your Own Troops in Line. Your own colleagues may be your worst enemy, if they are playing to the crowd, are bigoted people, or are just plain stupid. You have to keep them in line, too. If you don’t think you can handle your role, have your town attorney present to do it for you. The town attorney doesn’t have to run for office and (usually) doesn’t live in your town. Let him/her be the lightning rod for misdirected energy. We’re used to having people mad at us! We can handle it.”

Obviously, Branse himself had his own rules in mind when he took over the mike from the Planning Commission Chairman Robert McIntyre and threatened to call the police at the February 16 public hearing on the Preserve in Old Saybrook.

Read the full text of Branse’s thoughtful article in the Winter 2010 newsletter of the Connecticut Association of Conservation and Inland Wetlands Commissions, Vol. 22, No. 4.  Branse’s article can be found on page 6.

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Finally, the public got a chance to speak!

Up until last evening (Feb. 16), the “public” hearings in Old Saybrook on proposed changes in the much delayed Preserve development, consisted mostly of mind- numbing presentations by droning attorneys and assorted experts. 

Chairman of the Old Saybrook Planning Commission, Robert McIntyre

Not so last evening, when finally Robert McIntyre, Chairman of the Old Saybrook Planning Commission, let the voices of the public to be heard. The overarching question behind it all was whether 1,000 acres of open space in Old Saybrook should be blasted and bulldozed into modernity by a private developer?

Although the narrower question at the hearing was whether the Planning Commission’s original development plan should be modified to permit the building of three clusters of new housing along the edges of the site, speaker after speaker came back to the basic unworthiness of the whole development.  

Without exception every member of the public who spoke, said that letting a private developer build on this unique space of open land should not be allowed.  Although at one point Chairman McIntyre tried to steer the discussion back to the narrower question of whether to permit the building of the three new housing clusters, his words were in vain.

The speakers were of one voice. You could almost hear in the background, “Stop the Preserve! Stop it! Stop it! Stop it!”

One of the arguments expressed was how will a new cluster of houses be sold in the present tight housing market? Also, one speaker claimed that developing the Preserve will mean “huge costs to taxpayers,” such as paying for road upgrades, new intersections and new public services, generally, for the new residents on the site. 

Another speaker pointed out that three private companies had tried to develop the Preserve site, and each of them filed for bankruptcy, the most recent being Lehman Brothers.  

Then, the citizen environmentalists took the floor. Their comments included that the present open space is a coastal forest that is a key transit stop for migrating bird life, and that the vernal pools on the site must be protected, as well as the wood frogs, which after their eggs are hatched, clean the vernal pools. 

At this point Chairman McIntyre tried to get the speakers back on a narrower point. The Commission had approved an overall plan back in 2005, he said. Now under consideration was simply a request by the developer to modify the original plan, so as to build three clusters of new housing.

But no one paid any attention. The ad hominem attacks against the entire Preserve project went on.

One speaker, David J. Walden, told the sad tale about what happened in Fairfield, when residents tried to preserve as open space, a 200 acre tract of land. It was nibbled continually around the edges by developers, he said, until there was nothing left. 

Another speaker said that the issue should be, not what is good for the all mighty dollar, but what is good for the town.

At one point the cheers for the speakers attacking the Preserve development grew too loud for the taste of Mark Branse, Counsel to the Planning Commission. He stood up, seized the mike, and said that he was going to call the police, if the audience did not quiet down.  It seemed to be an overreaction to what was generally a peaceful meeting, but it did quiet the proceedings.

The popular feeling of the audience was summed up by the next speaker who said that after twelve years of considering whether to develop the Preserve, “Enough is enough.”

Finally, near the end of the public venting of hostility to developing the 1,000 acres of open space, the largest open space between Boston and New York City one speaker pointed out, there came a comment that was clearly relevant to the larger question, which was whether the Commission should permit this entire development to go forward.

Attorney Janet P. Brooks, representing the Alliance for Sound Planning, made the point that there was a fatal flaw in the Commission’s ongoing approval of its original plan for the site. The Commission’s original plan, Attorney Brooks pointed out, was conditioned on the fact that the developer would be granted an easement to build a bridge over the Valley Railroad State Park, which is owned by the Connecticut Department of Environmental Protection.

Back when it granted its approval of the Preserve development in 2005, the Planning Commission held that it was “probable” that the DEP would grant such an easement.  However, in 2006 the DEP did just the opposite. It flatly denied the developer’s request for a bridge easement. As Attorney Brooks put it in her written submission, “the probability that the DEP would grant an easement for access … no longer exists.”

Planning Commission Counsel Branse termed Attorney Brooks’ argument “an interesting perspective.” However, it could well be more than that, if access to Bokum Road by a bridge is considered to be an integral part of the original plan approved by the Commission. 

What was accepted as probable in 2005, as Brooks pointed out, in 2006 turned out not to be the case.  The access scenario on Bokum Road, a key element in the entire development plan, was no longer possible. This being the case, the Commission might have to go back to the drawing board, because a major assumption in the 2005 plan is not longer valid.

How can the Commission even think of approving the modification of a plan that is itself fundamentally flawed and unworkable is the question?

The effectuation of the Commission’s original plan in 2005 was also premised on the fact that the Town of Westbrook would approve a new entrance to the site on Route 153. However, the Commission has chosen to ignore the fact that the First Selectman of Westbrook have been on record as opposing this entrance to the site for over a decade.

It is almost an “Alice in Wonderland” attitude by the Commission to assume that Westbrook will grant the approvals necessary to implement this aspect of its 2005 plan.  

The public hearings phase on the modification of the original plan for the Preserve is now over, and future meetings will be open to the public but closed to further public comment. The Commission in its deliberations has three options. It can: 1) approve the modification requested by the developer, 2) reject the developer’s proposed modification but leave untouched the original plan, or 3) nullify or amend the original plan, because of the probabilities on which it was based back in 2005 have proved to be simply wrong in 2011.

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Due to the most recent DEMHS forecast of high probability for dangerous weather conditions on Wednesday evening, the Chairman of the Planning Commission has postponed the continued public hearing for “The Preserve” to the next regularly scheduled meeting of the Planning Commission on Wednesday, February 16, 2011 at 7:30 p.m. at the Old Saybrook Middle School, 60 Sheffield Street.

Read related article by Jerome Wilson:

The meaning of “phased development,” a key issue at February 2 hearing on the Preserve’s new “pods”

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At first, it seemed to all come down to a question of semantics. Should the Preserve’s proposed three clusters of housing, called “pods,” be characterized as the first phase of the phased development of the 1,000 acre property? Or, should the pods be considered simply as “stand alone” developments?

However, what is at stake is not simple semantics. Rather it is a question of whether, to get permission to build three pods of housing, the Preserve is prepared to reserve close to 500 acres of its property in perpetuity as open space.

The developer’s counsel, David M. Royston

Throughout much of the drawn out Preserve proceeding before the Old Saybrook Planning Commission, the developer’s counsel, David M. Royston, has staunchly maintained that the three pods for 221 new homes in the original plan, and now 230 in the new one, are a “stand alone” development.

This characterization, the counsel of the Planning Commission, Mark J. Branse, strongly disputed. Far from being a “stand alone” development, Branse maintained that the three proposed pods were clearly the first phase of a phased development of the Preserve’s property.

This dispute even reached the point where Branse in exasperation wrote Robert McIntyre, Chairman of the Planning Commission, on January 13 saying, “Allowing the stand alone development of each of the three pods is allowing a phased development and no amount of linguistic acrobatics can change that fact.”

Then, suddenly, in a memorandum to the Planning Commission on January 19, the Preserve’s Royston appeared to concede the point, that the three pods could indeed be characterized as the first phase of the full development of the Preserve.

Royston said, “The Applicant will proceed … without further debating the interpretation of “phasing” and with the balance of the expectation that the Commission will concur with the interpretation of its staff and its attorney.”

Commission counsel Branse finds this frankly tortured English “unclear,” he said in a recent interview, and he said that he would try to clarify what was being said at the upcoming public hearing on February 2. That hearing will be held, incidentally, at the Middle School in Old Saybrook beginning at 7:30 p.m.

What is at stake here is a huge question for the Preserve. Will the developer even want to go forward with the pods, if their approval, as part of a first phase of the site’s full development, requires reserving as open space 483.3 acres of its property in perpetuity?

Old Saybrook land use regulations clearly require that when a property is developed in phases that included in the first phase there must be the reservation of the entire amount of the open space that was approved in the original development plan.

The pertinent town regulation reads, “56.6.8 Phases. The area covered by an open space subdivision plan may be submitted for final approval in phases, if any land to be reserved for open spaces is so reserved in the first phase.”   

In interpreting this section the Land Use Department of the Town of Old Saybrook wrote to Planning Chairman McIntyre on January 14, “We reiterate that a consequence of phasing development is that the land reserved for open space by the Preliminary Open Space Plan must be dedicated, as to whether in fee or in easement, as a condition of approval at the time of approval of the first phase of the Open Space Plan for Subdivision of Land.”

In his remarks before the Planning Commission on December 1, 2010, Robert A. Levine, President of a prominent real estate development firm based in New York City, and the owner’s representative of the Preserve, made no reference to the town’s land use regulation that applies in the case of a phased development.

Levine did, however, note in his testimony, “that the purpose and intent of this application is to maintain all potential options with respect to the central forest core, from full development, to no development.” He also said, “We are prepared to make such plan revisions as are necessary to meet the regulations.”

As yet there is no clear expression by the owner’s representative of recognizing that concomitant with the Planning Commission’s approval of the first phase of the phased development of the three pods is a requirement to reserve almost half of the Preserve’s present property as open space forever.

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