Groton Open Space Association

Judge Purtill Denies Two GOSA Appeals On Mystic Woods

NEW LONDON — A New London Superior Court Judge has denied GOSA’s appeals of approvals in 2007 by Groton’s Inland Wetlands Agency and Zoning Commission of the proposed roughly 200-unit Mystic Woods Active Adult housing community proposed for Fort Hill. 

Judge Joseph Purtill’s decisions in the cases, which were heard in a combined trial Oct. 26, 2010, were dated Feb. 9, 2011.

GOSA was joined in its appeals by some residents of the neighborhood that would be affected by Mystic Woods. The project still needs approval by the Planning Commission.

Attorney Harry Heller of Uncasville represented the applicant, Hawthorne Development Partners LLC of Woburn, MA, and the owner, Colebrook Financial Co. of Middletown. Colebrook is the successor to Glemacy Builders of Griswold. GOSA was represented for the IWA case by Attorney Frank Cochran and for the Zoning Commission case by Attorney Peter Cooper, both of the New Haven firm of Cooper, Whitney, Cochran and Francois.

The IWA approved the project by a split decision Sept. 12, 2007. Mr. Cochran argued that the IWA should have considered but did not consider the most prudent and feasible alternative to protect the wetlands that ring the base of Fort Hill–a substantially smaller project. Judge Purtill’s decision said, among other things, “The commissioner of environmental protection argues that the feasible and prudent alternative analysis must occur only if the commission finds that there is a likelihood of unreasonable damage, impairment or destruction to wetlands or watercourses, which it did not find.”

Judge Purtill also quoted from precedent (Laufer v Conservation Commission) that puts a heavy burden on the plaintiff: “Where the record discloses evidence that supports any one of the reasons given [by the commission], the decision of the agency must be upheld.” Judge Purtill maintained “there is substantial evidence in the record to support the commission’s decision to grant the application.”

The Zoning Commission approved the project Dec. 5, 2007, by a split 3-2 vote. Voting against the project were Commission Chairman Stephen Hudecek and Commissioner Mariellen French. Voting for the project were Commissioners Robert O’Neill, Douglas Brandt (since resigned) and Richard Haviland.

Chairman Hudecek took particular exception to a last-minute, hand-drawn provision for a larger buffer between the project and the surrounding neighborhood requested by Mr. Haviland. The chairman called it “re-engineering on the fly” and said, “We have no idea what the project will look like after the change.”

Judge Purtill, however, found that “the boundary condition is permissible under the Groton zoning regulations and is not arbitrary.”

Attorney Cooper argued that the commission did not give adequate consideration to the main criteria for granting the special permit that was required for the project: harmony with orderly development of the surrounding area, absence of adverse traffic impacts and lack of negative environmental effects. He also said the town staff overstepped its boundaries by “actively participating” in the commission’s deliberations and improperly influencing members’ decisions.

Rejecting the argument that the project would not be harmonious, the judge took approving note of the applicant’s argument that the project’s density, though concentrated on approximately half the 104-acre parcel, was within that prescribed for the applicable RU20 zone. He noted expert testimony introduced by the developer that the project would not negatively impact the value of neighboring properties.

Regarding traffic problems, he said concerns had been considered and were alleviated by a restriction of Route 1 access to emergency traffic and pedestrians.

Dealing with potential environmental impacts, the judge said the commission found the project would not result in unreasonable pollution or impairment of public trust in the natural resources of the state.

Said the judge: “This conclusion is supported by the evidence, as the commission heard testimony from several experts regarding the environmental impact by [sic] the project and reviewed the inland wetlands commission’s [sic] findings and conditions. Attorney Harry Heller testified to this fact several times.”

As to alleged undue influence of staff, Judge Purtill found that “The lengthy discussion in the public hearings together with the fact that the commission made several amendments to the staff’s findings and independently reviewed and voted on approval of the special permit application demonstrate [sic] that the commission was not unduly persuaded by its staff in approving the application.” 

In 2005, Judge Purtill denied three GOSA appeals in connection with the proposed Four Winds Active Adult project on the Watrous property. Judge Purtill’s formal title is Judge Trial Referee, given to retired judges.