Where Bokum Road ends within the Preserve

There is another hearing coming up on whether the Old Saybrook Planning Commission should approve a modification of its 2005 development plan for the Preserve. This latest hearing will be held at the Old Saybrook Middle School, on Wednesday, March 2 at 7:30 p.m.

However, unlike the previous four hearings, where the general public and interested parties were invited to testify before the Planning Commission, only the members of the Commission will be allowed to speak at the March 2 hearing.  The general public will be permitted to listen to the Commissioners discussing among themselves whether to approve or disapprove the developer’s proposed modification of the Preserve’s original plan, but the time for a public voicing of opinions in these proceedings is over.

Also, unlike the four previous public hearings, during which many of the general public spoke out against the entire development plan approved back in 2005,  Commission members are expected to concentrate entirely on approving or not the modifications proposed by the developer, and not stray to the larger issue.

The Commission has a number of choices in dealing with the modification application of the developer. First it can give its full approval to the modifications proposed by the developer. This would mean that going forward, the original plan would reflect these changes. Second, the Commission could vote to reject the proposed modifications, which would leave the original plan in place, as it has been since 2005.

Also, should the Commission approve the proposed modifications, it even might  go a step further, and treat the adoption of the modifications as in themselves a first phase of a phased development. This in turn could trigger an obligation by the developer, as part of its first phase, to reserve all the open space in the original plan, as is required by the town’s land use regulations. The result would mean that 483 acres of the present site would be reserved in perpetuity as open space.

The Valley Railroad track within the Preserve

When it first proposed a modification of the original plan, the heart of the developer’s proposal was to build three stand-alone, housing clusters, which it called pods. However, on the day before the last hearing on February 16, the Attorney for the developer, David Royston, withdrew the request for permission to build the three, stand alone clusters of housing units. Attorney Royston also withdrew the developer’s earlier request for a deferral of roadway improvements in the 2005 plan.

However, even with these changes, the developer’s attorney left in place a request for a modification of the Bokum Road parcel so that it could contain 9 lots, as well as a request to install 30,000 gallon cisterns in each developed area for fire protection.

Also, Royston said the developer would assume responsibility for gaining approval for a crossing over the Valley Railroad State Park, even in the face of a written denial by the Department of Environmental Protection of such a crossing. The reason for taking this step, the developer’s attorney said, was because of ongoing discussions regarding the purchase of new property that will make the DEP denial of a park crossing a moot point.

It might be noted that Royston made no mention of gaining approvals by the Town of Westbrook, which the developer must obtain before it can construct a key access road to the project. Past and present First Selectmen of Westbrook have expressed their firm opposition to the entire Preserve project, and it is the developer’s full responsibility and not that of the Commission’s, to turn this attitude around in Westbrook, if indeed it can.

Finally, the developer’s Attorney Royston emphasized in his final memorandum to the Commission that the developer was not pursing a “phased development” by making its modification application. However, it could be argued that the Commission itself has the final say as to whether to characterize modifications requested by a developer as the first phase of a phased development, and not the developer.

In this case saying that the requested modifications do not constitute a first phase of a phased development does not necessarily make it so. Under this scenario the Commission would decide the question, if it chooses to consider it.

However, if the proposed changes in the developer’s modification application were indeed determined to be the first phase in a phased development, the developer might even decide to withdraw its entire modification application. If this were to happen, the original 2005 plan would remain intact, and the developer’s plans for the future would become an open question.

Another possible scenario is this. If the developer maintains that its proposed modifications are not the first phase of a phased development, a position with which the Commission disagrees, then the Commission could simply refuse to grant the developer’s application. Then, once again, it would be back to square one in the development of the Preserve.

Finally, the public had a chance to speak.

Up until last evening (Feb. 16), the “public” hearings in Old Saybrook on proposed changes in the much delayed Preserve development, consisted mostly of mind-numbing presentations delivered in monotones by attorneys and assorted experts.

Chairman of the Old Saybrook Planning Commission Robert McIntyre

Not so last evening, when finally Robert McIntyre, Chairman of the Old Saybrook Planning Commission, let the voices of the public to be heard. The overarching question behind it all was whether 1,000 acres of open space in Old Saybrook should be blasted and bulldozed into modernity by a private developer.

Although the narrower question at the hearing was whether the Planning Commission’s original development plan should be modified to permit the building of three clusters of new housing along the edges of the site, speaker after speaker came back to the basic unworthiness of the whole development.

Without exception every member of the public who spoke, said that letting a private developer build on this unique space of open land should not be allowed.  Although at one point Chairman McIntyre tried to steer the discussion back to the narrower question of whether to permit the building of the three new housing clusters, his words were in vain.

The speakers were of one voice. You could almost hear in the background, “Stop the Preserve! Stop it!”

One of the arguments expressed was how will a new cluster of houses be sold in the present tight housing market? Also, one speaker claimed that developing the Preserve will mean “huge costs to taxpayers,” such as paying for road upgrades, new intersections and new public services, generally, for the new residents on the site.

Another speaker pointed out that three private companies had tried to develop the Preserve site, and each of them filed for bankruptcy, the most recent being Lehman Brothers.

Then, the citizen environmentalists took the floor. Their comments included that the present open space is a coastal forest that is a key transit stop for migrating bird life, and that the vernal pools on the site must be protected, as well as the wood frogs, which after their eggs are hatched, clean the vernal pools.

At this point Chairman McIntyre tried to bring the speakers back onto a narrower point. The Commission had approved an overall plan back in 2005, he said. Now under consideration was simply a request by the developer to modify the original plan, so as to build three clusters of new housing.

But no one paid any attention. The ad hominem attacks against the entire Preserve project went on.

One speaker, David J. Walden, told the sad tale about what happened in Fairfield, when residents tried to preserve as open space, a 200 acre tract of land. It was nibbled continually around the edges by developers, he said, until there was nothing left.

Another speaker said that the issue should be, not what is good for the all mighty dollar, but what is good for the town.

At one point the cheers for the speakers attacking the Preserve development grew too loud for the taste of Mark Branse, Counsel to the Planning Commission. He stood up, seized the mike, and said that he was going to call the police, if the audience did not quiet down.  It seemed to be an overreaction to what was generally a peaceful meeting, but it did quiet the proceedings.

The popular feeling of the audience was summed up by the next speaker who said that after 12 years of considering whether to develop the Preserve, “Enough is enough.”

Finally, near the end of the public venting of hostility to developing the 1,000 acres of open space, the largest open space between Boston and New York City one speaker pointed out, there came a comment that was clearly relevant to the larger question, which was whether the Commission should permit this entire development to go forward.

Attorney Janet P. Brooks, representing the Alliance for Sound Planning, made the point that there was a fatal flaw in the Commission’s ongoing approval of its original plan for the site. The Commission’s original plan, Attorney Brooks pointed out, was conditioned on the fact that the developer would be granted an easement to build a bridge over the Valley Railroad State Park, which is owned by the Connecticut Department of Environmental Protection (DEP).

Back when it granted its approval of the Preserve development in 2005, the Planning Commission held that it was “probable” that the DEP would grant such an easement.  However, in 2006 the DEP did just the opposite. It flatly denied the developer’s request for a bridge easement. As Attorney Brooks put it in her written submission, “the probability that the DEP would grant an easement for access … no longer exists.”

Planning Commission Counsel Branse termed Attorney Brooks’ argument “an interesting perspective.” However, it could well be more than that, if access to Bokum Road by a bridge is considered to be an integral part of the original plan approved by the Commission.

What was accepted as probable in 2005, as Brooks pointed out, in 2006 turned out not to be the case.  The access scenario on Bokum Road, a key element in the entire development plan, was no longer possible. This being the case, the Commission might have to go back to the drawing board, because a major assumption in the 2005 plan is no longer valid.

How the Commission can think of approving the modification of a plan that is itself fundamentally flawed and unworkable is the question members must resolve.

The effectuation of the Commission’s original plan in 2005 was also premised on the fact that the Town of Westbrook would approve a new entrance to the site on Rte. 153. However, the Commission has chosen to ignore the fact that the First Selectman of Westbrook has been on record as opposing this entrance to the site for over a decade.

Some say it is almost an “Alice in Wonderland” attitude by the Commission to assume that Westbrook will grant the approvals necessary to implement this aspect of its 2005 plan.

The public hearings phase on the modification of the original plan for the Preserve is now over, and future meetings will be open to the public but closed to further public comment. The Commission in its deliberations has three options. It can: 1) approve the modification requested by the developer, 2) reject the developer’s proposed modification but leave untouched the original plan, or 3) nullify or amend the original plan, because of the probabilities on which it was based back in 2005 have proved to be simply wrong in 2011.