August 3, 2020

The meaning of “phased development,” a key issue at February 2 hearing on the Preserve’s new “pods”

At first, it seemed to all come down to a question of semantics. Should the Preserve’s proposed three clusters of housing, called “pods,” be characterized as the first phase of the phased development of the 1,000 acre property? Or, should the pods be considered simply as “stand alone” developments?

However, what is at stake is not simple semantics. Rather it is a question of whether, to get permission to build three pods of housing, the Preserve is prepared to reserve close to 500 acres of its property in perpetuity as open space.

The developer’s counsel, David M. Royston

Throughout much of the drawn out Preserve proceeding before the Old Saybrook Planning Commission, the developer’s counsel, David M. Royston, has staunchly maintained that the three pods for 221 new homes in the original plan, and now 230 in the new one, are a “stand alone” development.

This characterization, the counsel of the Planning Commission, Mark J. Branse, strongly disputed. Far from being a “stand alone” development, Branse maintained that the three proposed pods were clearly the first phase of a phased development of the Preserve’s property.

This dispute even reached the point where Branse in exasperation wrote Robert McIntyre, Chairman of the Planning Commission, on January 13 saying, “Allowing the stand alone development of each of the three pods is allowing a phased development and no amount of linguistic acrobatics can change that fact.”

Then, suddenly, in a memorandum to the Planning Commission on January 19, the Preserve’s Royston appeared to concede the point, that the three pods could indeed be characterized as the first phase of the full development of the Preserve.

Royston said, “The Applicant will proceed … without further debating the interpretation of “phasing” and with the balance of the expectation that the Commission will concur with the interpretation of its staff and its attorney.”

Commission counsel Branse finds this frankly tortured English “unclear,” he said in a recent interview, and he said that he would try to clarify what was being said at the upcoming public hearing on February 2. That hearing will be held, incidentally, at the Middle School in Old Saybrook beginning at 7:30 p.m.

What is at stake here is a huge question for the Preserve. Will the developer even want to go forward with the pods, if their approval, as part of a first phase of the site’s full development, requires reserving as open space 483.3 acres of its property in perpetuity?

Old Saybrook land use regulations clearly require that when a property is developed in phases that included in the first phase there must be the reservation of the entire amount of the open space that was approved in the original development plan.

The pertinent town regulation reads, “56.6.8 Phases. The area covered by an open space subdivision plan may be submitted for final approval in phases, if any land to be reserved for open spaces is so reserved in the first phase.”   

In interpreting this section the Land Use Department of the Town of Old Saybrook wrote to Planning Chairman McIntyre on January 14, “We reiterate that a consequence of phasing development is that the land reserved for open space by the Preliminary Open Space Plan must be dedicated, as to whether in fee or in easement, as a condition of approval at the time of approval of the first phase of the Open Space Plan for Subdivision of Land.”

In his remarks before the Planning Commission on December 1, 2010, Robert A. Levine, President of a prominent real estate development firm based in New York City, and the owner’s representative of the Preserve, made no reference to the town’s land use regulation that applies in the case of a phased development.

Levine did, however, note in his testimony, “that the purpose and intent of this application is to maintain all potential options with respect to the central forest core, from full development, to no development.” He also said, “We are prepared to make such plan revisions as are necessary to meet the regulations.”

As yet there is no clear expression by the owner’s representative of recognizing that concomitant with the Planning Commission’s approval of the first phase of the phased development of the three pods is a requirement to reserve almost half of the Preserve’s present property as open space forever.