The Wilton Zoning Board of Adjustment is seeking legal counsel after being accused of acting in bad faith in its denial of a variance that would have allowed an asphalt plant on Quinn Drive.
During its meeting on Tuesday, the ZBA reviewed an application for a rehearing on the board’s Nov. 12 decision to deny the variance that would have allowed a proposed asphalt plant and its attached storage silo to be taller than is allowed in the industrial zone. The applicant had told the ZBA during the variance hearing process that while an asphalt plant is not prohibited in the industrial zone, the height limitations in the zone prohibit construction of one.
This is not the first time the variance denial has been questioned. Previously, on Dec. 10, zoning board member Joanna Eckstrom requested a rehearing in the matter, arguing that during the meeting in which the board deliberated the case and voted on it, Chair Neil Faiman had shared a draft decision which included arguments against approval. Eckstrom said the sharing of that document was a “technical error” but the majority of the board disagreed and denied her request for a rehearing.
Now, the applicants, Quinn Brothers LLC, have also requested a re-hearing. In a letter to the board through its attorney Daniel Muller, Jr., Quinn Brothers argued five points, including that the board’s use of research outside of public meetings was improper, that the pre-written motion gave the appearance that the board had decided the matter prior to the consideration of all relevant evidence, that its finding that the application didn’t meet the “hardship” criteria of the ordinance was unreasonable and finally that the town acted in bad faith.
The bad faith argument cited the Planning Board’s current discussions to update the industrial zone portion of the town’s Zoning Ordinance.
“In sum, Quinn has been made to spend time and money when the Town had no intention of granting approvals for use which it now seeks to ban in one manner or another …” Muller wrote. “Such conduct may render the Town liable for damages, attorney’s fees, and, if no fair process can be had, a builder’s remedy.”
A builder’s remedy is a lawsuit filed by developers when they believe a community is practicing exclusionary zoning.
The board decided Tuesday it would continue the consideration of re-hearing during its next meeting on Jan. 14, after deciding it wanted to consult with the town’s attorney on the matter.
Faiman said the bad faith argument constituted a “gratuitous threat of litigation” beyond the normal appeal process.
“To my mind, that puts it in the category that the board should have a discussion with town counsel,” Faiman said.
“I think we’ve reached the point where it’s absolutely necessary,” agreed ZBA member Bob Spear.
The board agreed to coordinate a non-public meeting with the town’s attorney, to be held at a date to-be-determined prior to Jan. 14, and to take up the consideration for re-hearing at their Jan. 14 meeting at 7:30 p.m.
Ashley Saari can be reached at 924-7172 ext. 244 or asaari@ledgertranscript.com. She’s on Twitter @AshleySaariMLT.