Brooklyn, CT. Court Shuts Down Citizens’ Wal-Mart Appeal
On July 26, 2009, Sprawl-Busters reported that a proposed Wal-Mart superstore had stimulated two lawsuits against its efforts to pave over tiny Brooklyn, Connecticut.
Four months earlier, on March 19, 2009, the Inland/Wetlands Commission in Brooklyn, Connecticut approved Wal-Mart's application for a 162,000 s.f. superstore, following a total of 12 hours of hearings on three separate dates.
The I/W Commission voted that the huge superstore would not create a "significant activity" that would have a major impact on wetlands. They also ruled that the project would not cause unreasonable pollution or impairment the wetlands on the site. The Commission attached 14 conditions to their approval, including requiring Wal-Mart to use a biodegradable de-icing product on the parking lot. These "conditions" were all minor in nature.
After the vote, a citizen's group vowed to challenge the I/W Commission decision. "We're in the process of filing an Appeal," one member of the group told Sprawl-Busters on April 6, 2009. "I believe the Town was getting served today." Once again, Wal-Mart's inflexible approach to store siting had led to a courtroom, rather than a ribbon cutting.
The Battle of Brooklyn was in the news again on June 24, 2009 when another town board, the Planning & Zoning Commission, voted 7-1 to approve the application, with members attaching their own list of 18 minor conditions to the plan. The commission will require Wal-Mart to increase its buffer area, do a daily litter clean up, conduct a noise and lighting test, and post a bond to ensure proper erosion control and landscaping on the site if the project is not finished. One member of the P&Z voted against the plan, noting that its huge size was not "in harmony with the town, does not have a New England architectural style and would hurt neighboring property values," according to the Bulletin. Lisa Arends, a spokesperson for the group Brooklyn for Sensible Growth, told the newspaper, "I'm disappointed, but not surprised. "It is what it is, and we go from here."
A second appeal in this case was formally filed in Putnam Superior Court on July 6, 2009. The "Brooklyn Dozen," including residents Jeff Haines, Demetrios and Maria Pasiakos, Kerry and Elaine Lambert and Dan Litke filed as abutters to the project. "There were several issues that were not properly resolved and really should be looked at, not by the committee, but by a judge," Haines told the Norwich Bulletin.
Their lawsuit charged that the P&Z vote for Wal-Mart was "illegal, arbitrary, capricious and an abuse of its discretion." This is standard language used by plaintiffs. The residents say that town officials failed to follow town regulations and state statutes in making their decision. The plaintiffs and their experts testified during the hearings that the huge store -- the building itself -- is almost three times the size of a football field, and did not conform with other retail businesses in the area, or with the surrounding built environment. Four acres including in the plan are zoned residential-agricultural, and not planned commercial.
The lawsuit also charged that town "staff participation during deliberations was in the nature of advocacy ... and rendered the proceedings fundamentally unfair."
The first appeal of the Inland Wetlands case came up for a pretrial conference on September 23, 2010, according to the Norwich Bulletin. The actual court hearing date was April 16, 2010. The case lasted only two hours.
These legal challenges meant that citizens had effectively delayed any action on Wal-Mart's approval from Inland/Wetlands by at least 14 months from the vote of the P&Z. Wal-Mart had indicated that nothing would happen with this project until the appeals were processed. Given that this project first appeared in November of 2008, citizen appeals have forced the project to spend nearly two years mired in controversy.
On August 17, 2010, Sprawl-Busters reported that a Putnam Superior Court judge had resolved the first lawsuit. The court decision denied the citizen's appeal of the Inland Wetlands Commission approval of the application. The Superior Court judge said the plaintiffs had "failed to present any basis for a finding that the hearing process was unfair, biased or that the result was predetermined... The plethora of expert testimony, analysis, preparation, revision and scrutiny involved in the proposed regulated activity serve as a basis for this decision." The Judge denied a motion from the citizens to reconsider or reargue the case on September 13, 2010.
Resident Jeff Haines, one of the citizens who filed the appeal, told the Norwich Bulletin he expected this outcome. "It's a sad thing that the environment will lose out to industry at this time and in this town."
But before Wal-Mart could start construction, the giant retailer still had to overcome the second lawsuit, this one based on the decision of the Planning and Zoning Commission. That case has had its hearing in June of 2010. This week, a Superior Court Judge ruled that the Brooklyn Planning & Zoning Commission decision was "based on substantial evidence and, further, it complies with the planning and zoning regulations in effect at the time of the application."
The decision, which was released October 4, 2010, said "There is no question that this is a very substantial project, and its impact on the town of Brooklyn is likely to be significant. By the same token, there is nothing to suggest that the commission was not aware of this very obvious fact. Indeed, the opposite conclusion is justified."
A spokesman for Wal-Mart told the Norwich Bulletin that his company was pleased with the judge's ruling. The spokesman repeated Wal-Mart's standard slogan response to almost every question: "Overall, we look forward to saving people money so they can live better in Brooklyn. We hope there are no further appeals in this process so that Walmart may begin construction and bring much-needed jobs and tax revenue to the town of Brooklyn."
Plaintiff Jeff Haines also had a comment for the newspaper: "Another small town is going to get sold off to a big company."
What you can do: Residents still have the right to appeal this latest decision, but the major challenge facing all citizens' groups is the same: where to find the money to continue.
This is not a problem for large retailers or developers, and it is one of the many limitations that citizen groups face when taking on wealthy corporations. The legal pursuit of common sense land use is not a level playing field, as the residents of Brookly well understand.
The town of Brooklyn budgeted $5,000 in legal costs to handle the initial appeal of the Inland Wetlands decision. This expenditure, and those that followed, was entirely unnecessary, since the town could simply have asked Wal-Mart to pay for all legal costs associated with its litigation -- because it is Wal-Mart chiefly that will benefit from the granting of that permit. Many towns needlessly make their taxpayers pick up some of the costs of such litigation, when the developer or the landowner really should be underwriting all the costs -- and have the resources to do so.
Former Brooklyn First Selectman Roger Engle, who was widely believed to have attended several 'private' meetings with Wal-Mart before the project became public, told citizens from the outset that the superstore was a "done deal." Residents voiced concerns that Engle had plans to develop land further along Route 6 that would be more valuable if Wal-Mart were approved.
After the legal appeals were filed, Engle told the Bulletin that he was glad the town can begin to move on from what has been an extremely divisive issue. "People can shake hands and go back to talking," Engle told the newspaper. "There's nothing anyone can do now except the judge." But many residents remained upset with Engle, and said this project is not needed and is incompatible in this small community.
The Brooklyn retail trade area already has a Wal-Mart 10 miles away in Putnam, Connecticut, plus a supercenter 14 miles away in North Windham, and another supercenter 14 miles away in Lisbon. "This store will not affect our stores in neighboring communities," Wal-Mart told its critics. "Having multiple stores in a region is a way to ensure we provide savings and convenience to as many as possible." Saturation is also a way to waste hundreds of acres of land, and destroy competition.
Wal-Mart tried to use the economy's weakened condition as another reason to want a superstore. "With the economy in fragile condition, a Brooklyn store brings hundreds of new jobs and hundreds of thousands of dollars in tax revenue," Wal-Mart said. The reality is that there will be little or no 'new' jobs at Wal-Mart, because the superstore in Brooklyn will cannibalize other Wal-Mart's nearby, and cause local stores -- including grocery stores -- to fail.
An independent report commissioned by the town concluded that Wal-Mart had created a 'village' façade for their superstore in an attempt to "break up the long walls with gables and different roof treatments." "This variety of building forms appear to be an attempt to break down the scale of the project (to break the box), and to create the illusion of a vital 'streetscape,'" the consultants wrote. "However, it should be noted that the presence of the main building block is still apparent. Further exacerbating this visual contradiction is the fact that the vast parking lot and deep setback from Route 6 will have the effect of miniaturizing this handsome articulation and fight the admirable architectural attempt at creating the image of a lively streetscape... but the project remains a very large structure set deeply into the property with a vast sea of parking separating the building from the street. While the specific architectural delineation is pleasing, it does not disguise or overcome the physical reality of the larger development pattern (vehicular primacy, big box retail) that the project perpetuates."
The report noted that the building is 8 feet higher than town zoning limits, and that its design is clearly not compatible with the town's Route 6 corridor design guidelines. "The architectural style of the proposal should be 'compatible and complimentary to the rural character of Brooklyn," the study concluded. "The proposal does not comply with the spirit of this suggestion."
Finally, the report blasts Wal-Mart for not fitting in with the rural character of its host town, quoting Brooklyn requirements: "To maintain the unique character of Brooklyn, franchise architecture (building design that is trademarked or identified with a specific chain ... and is generic in nature) should be minimized, unless compatible with the rural nature of Brooklyn -- rather they should enhance and compliment the rural character and New England style present in the Town... this design does not embrace the rural, New England style present in Brooklyn. There are no particular identifying elements that say this building was designed specifically for Brooklyn, but rather that this building could easily be seen comfortably residing on virtually any retail strip in America... .The intent is to encourage a more human scale that residents of Brooklyn will be able to identify with their community."
Unfortunately, the review boards in Brooklyn ignored this report. Readers are urged to email First Selectman Austin Tanner at http://www.brooklynct.org/contactus.htm with the following message:
"Dear First Selectman Tanner, Your predecessor, Roger Engle, said that Brooklyn is at a crossroads, 'striving to maintain its rural charisma and atmosphere while keeping an eye to the future.' What kind of future do you think Wal-Mart will really bring? You can't buy Brooklyn charisma and atmosphere at any Wal-Mart. They don't sell it. But once they steal it from you, you won't be able to buy it back at any price.
Don't force residents to keep suing local government for dramatically changing the character of your town. Brooklyn needs a cap on the size of retail stores to prevent this from ever happening again. The reasons that many people love Brooklyn are at risk -- far more than charisma is at stake.
The town should never again allow a store that is so incongruous to disrupt the lives of so many residents. If you don't learn from this Wal-Mart fiasco, you will continue to destroy the rural heritage of Brooklyn one box at a time. As it is, you can now officially declare that charisma is dead in Brooklyn."