Groton Open Space Association

Mystic Woods Appeal Charges Bad OPDS Advice To Zoning Unit

GROTON — The Groton Open Space Association has appealed the Zoning Commission’s approval of the Mystic Woods over-55 housing project, contending that the town’s planning staff gave bad advice to the commission, impermissibly advocated for the applicant developer, and usurped the commission’s role.

The appeal to the New London Superior Court, dated Dec. 20, 2007, seeks to overturn the Zoning Commission’s split 3-2 approval Dec. 5 of the Mystic Woods development. GOSA has been joined in the appeal by several owners of abutting property. The project’s approximately 70 buildings containing 201 units would sit on 47 clear-cut acres of a 105-acre tract on Fort Hill.

Atty. Peter B. Cooper, of the New Haven firm of Cooper, Whitney, Cochran & Francois, represents GOSA in the Zoning Commission action.

This is the second appeal against a land-use commission approval of the project. The Inland Wetlands Agency’s split Sept. 12, 2007, approval of Mystic Woods also is subject of a Superior Court appeal by GOSA and Fort Hill neighbors.

The Zoning Commission appeal argues that the Commission, in deciding whether to grant a special permit, such as is required for Mystic Woods, has the discretion to determine whether a project would be suitable from the points of view of harmony with the existing neighborhood; traffic flow; and environmental impact. The document said that a majority of the commission “accepted erroneous legal advice from the Commission’s staff that it had no discretion but to approve the density level as proposed in the application, without independently subjecting the effects of that proposed density” to the special permit standards. It said the commission in acting on a special permit is not bound to the “mechanical application of density and bulk regulations.”

Among other key points of the appeal:

–During the commission’s deliberations Dec. 5, the planning staff “interjected itself to such a significant extent…that it crossed over the line between permissible consultation and planning advice as requested by the Commission to an impermissible advocacy role on behalf of the applicant.” The applicant is Hawthorne Development Partners LLC of Woburn, MA.

–Michael J. Murphy, director of the Office of Planning and Development Services, told the Commission Dec. 5 that “The applicant is meeting the standards of the regulations now…this is not a site plan.” The appeal says that “the legal conclusion that the standards of Section 8.3-8 [special permit zoning regulations] have been met is a Commission function, not a Staff one. In short, the Staff impermissibly usurped and effectively limited the necessary discretionary role of the Commission…”

–The development density of 201 units on 47 acres is double the norm for the RU-20 zone involved and would thus be inharmonious with the orderly development of the RU-20 district. It said Mystic Woods would imperil valuable Wetland #11 near the entrance/exit road and would create adverse traffic impacts on Flanders Road.

–The tract is “in the rural residential or RU-20 zone which is designated by the Town Plan of Conservation and Development as a conservation area, and which recommends topography based density limits in order to be in compliance with the ‘harmony’ provisions of the special permit objectives.”

–The plan was impermissibly re-engineered “on the fly”–in the words of Chairman Stephen Hudecek–in a way that was not subject to review and analysis of the intervenors and the public after the public hearing had closed. [After staff objected to member Richard Haviland’s proposal for a reduction in the number of units, Mr. Haviland quickly called for an increased buffer between certain boundary lines of existing houses in the neighborhood and proposed buildings in the project. He asked for a ruler and drew lines on a plan to show his suggestion to other Commission members.] The proposal, which the appeal called “cosmetic…but unanalyzed,” was accepted by the Commission majority. Voting against the Zoning Commission decision Dec. 5 were Chairman Hudecek and member Mariellen French. Voting to approve were members Haviland, Douglas Brandt and Robert O’Neill.

The appeal, which names the Zoning Commission and Hawthorne Development Partners as defendants, calls for the defendants to respond by Jan. 29, 2008.