Grace Farms must revert to the terms of its 2013 special permit, as a religious institution only, because the validity of a more recent approval is now in question, according to a recent legal filing from one of the organization’s neighbors.
According to a motion filed on behalf of Smith Ridge Road residents Tim Curt and Dona Bissonnette, though Grace Farms itself is appealing some of the 100 conditions imposed by the Planning & Zoning Commission in an approval from last fall, both that Lukes Wood Road organization and the Planning & Zoning Commission “have been proceeding as if the special permit which is the subject of this appeal were in full force and effect, and have been pursuing activities which would only be permitted if this court determines after a hearing that the special permit is valid.”
The motion filed by attorney David Sherwood of Glastonbury-based Moriarty, Paetzold & Sherwood also notes that the validity of a prior P&Z decision regarding Grace Farms—specifically, a decision to amend the New Canaan Zoning Regulations in order to allow for more than one “principle use”—may be invalid due to a filing mistake, as described in a separate lawsuit. Because of that mistake and on the advice of Town Attorney Ira Bloom, Grace in November re-filed its applications for a text change and special permit—then in January withdrew them, saying only that it was satisfied, after all, with the earlier approval.
Yet “by reapplying for the text amendment and the special permit on which it depends, at the request of counsel to the commission, the plaintiff and the commission are acknowledging the previous approvals are invalid,” according to the motion filed by Sherwood.
“There is simply no other logical explanation for the resubmission of identical applications incorporating thousands of pages of documents nor justification for the inordinate time and expense required t process and consider them if not to correct the errors identified in the Curt/Bisonnette appeals. If both Grace Farms and the New Canaan Planning and Zoning Commission believe that the approvals are invalid, then Grace Farms should not be operating pursuant to those approvals.”
In addition, if Grace is correct in its own appeal that illegal conditions were imposed on P&Z’s approval, then the permit itself is void. Finally, the neighbors said, “The balance of equities favors the granting of the stay.”
“The plaintiff may continue to operate pursuant to the special permit approved in March, 2013 without hindrance until the legality of the reapprovals is litigated,” the motion said. “There is no justification for subjecting the intervening defendants to the significant broadening of activities permitted at Grace Farms, and the concomitant increase in noise, lights and intrusions on their privacy, while the plaintiff itself attacks the approval which sanctions those activities and challenges the very conditions designed to protect the intervening defendants.”
A state Superior Court in Hartford is scheduled on Thursday to hear the motion.
Spokespeople for Grace Farms could not immediately be reached for comment.
Both P&Z and Grace Farms have filed objections to the motion.
According to David Markatos, one Smith Ridge Road neighbor named as a party to the Grace Farms appeal, if the court finds in favor of the motion, “the upshot would be that activities at Grace Farms would be restricted to Grace Community Church.”
“As had been represented from the beginning of 2007, this was supposed to be a development for Grace Community Church, a religious institution,” he said.
Markatos also referred to a preamble to P&Z’s September approval of Grace Farms’ special permit, which notes that in 2013 the commission approved “the use of a portion of the property as a religious institution and to authorize construction of building(s) and other improvements to the site.”
Further, P&Z notes in its approval, the New Canaan town planner at the time said in 2016 that it was his opinion that “some of the uses occurring at the site have indeed exceeded some of the special permit conditions granted in March 2013.”
In the objection filed on behalf of the town, Bloom said P&Z doesn’t agree that the 2017 text amendment and special permit are invalid.
The assertion that the re-application filed Monday on behalf of Grace Farms amounts to an acknowledgement that the prior approvals are not valid “is simply false,” according to Bloom, and “ignores the common sense and not uncommon effort to eliminate procedural claims on appeal.”
“It was discovered that the text amendment, originally passed by the Commission on July 25, 2017 with an effective date of August 29, 2017, was not filed with the Town Clerk until after that effective date due to the unplanned and hasty departure of the prior Town Planner,” Bloom wrote.
He added: “While this was at most a technical and legally inconsequential matter, the Commission, acting on advice of the undersigned Town Attorney, asked [Grace Farms Foundation] to ‘reapply’ for the text and special permit to eliminate this unnecessary issue and allow the Court to focus on the remaining claims. This was a prudent way to proceed and on that other commissions have followed to avoid future debate on insignificant issues. The Commission has spent nearly ten years engaged in hearings and litigation with neighbors over this site, and the Commission believed the matter should not be decided on this minor issue.”
Further, Bloom said, Curt and Bissonnette in their own appeal seek to overturn P&Z’s decisions due to the filing mistake.
The 100 conditions imposed by P&Z were intended “to reduce the impact to the neighbors of this site.”
“A review of those conditions reveals a variety of limits on events, restriction on activities and new reporting requirements, all intended to diminish the impact and control the activities,” Bloom wrote. “Other conditions impose heavy landscape buffering requirements. It is ironic that [Curt and Bissonnette] seek to revert back to the 2013 special permit that offered much less detail. In their present motion, the Intervening Defendants do not even allege any specific irreparable harm, nor can they prove it.”
Attorney Ted O’Hanlan of Stamford-based Robinson + Cole on Monday also filed an objection to the motion, on behalf of Grace Farms.
In it, O’Hanlan argued that an appeal of a zoning decision such as the one filed for Grace Farms “does not stay the implementation or enforcement of said decision.”
In addition, O’Hanlan wrote, Curt and Bissonnette “offer no facts to support the relief they seek.”
“The Motion for Order was not accompanied by an affidavit, the minimum showing required to obtain a temporary restraining order, or by documents or other admissible evidence.”
The neighbors also have not shown cause through the “irreparable harm” prong of request for injunctive relief, O’Hanlan argued.
“They cite no case law and provide no analysis whatsoever as to how their interests and rights will be impacted, much less irreparably haremd, if Grace Farms continues to act under the 2017 Special Permit. Rather they simply conclude, with no factual basis, that they ‘will suffer.’ ”
The motion is to be heard at 11 a.m. on March 15 in state Superior Court in Hartford, according to an order from Judge Marhsall K. Berger Jr.
Praying for Grace. If only Grace Farms had been there when I was a kid it would have been such a blessing.
All things die young, will this happen to Grace Farms.
Just leave them along. What harm do they represent?
Norm J.
Just leave them alone….
Having attending Thursday’s hearing, we were pleased that Judge Berger readily dismissed Grace Farms Foundation’s attempt to quash the neighborhood’s request for a restraining order, and set May 30th as the hearing date for witness testimony and oral argument. The neighborhood’s suggestion that Grace Farms Foundation and the town stipulate on the record that they would agree to abide by and enforce the conditions of the 2017 special permit during the pendency of the litigation — as a way to avoid the May TRO hearing — was rejected by Grace Farms Foundation and the town. While disappointing, that rejection was not unexpected given Grace Farms Foundation’s well-established practice of willfully disregarding special permit operating conditions, and the town’s unwillingness to enforce conditions that serve to mitigate the impacts and encroachments of a commercial facility in New Canaan’s lowest density residence zone.