Tonight, the planning commission unanimously denied Joseph Putnam's application to build a transfer station on Plumtrees Road. This is a tremendous victory for the residents who live by the proposed site and came out by the hundreds to express their disapproval with the application. Also, a huge round of thanks goes out to Common Councilman Tom Saadi for keeping the residents of the 4th ward informed about the transfer station application. From hosting a town hall meeting, to putting together an informal meeting between Putnam and the residents who would be effected by the station, Saadi went to bat for his constituents...which is more than I can say for other people on the Common Council who are AWOL when it comes to irresponsible development issues in their wards.

Eugene Driscoll has a write-up on the meeting posted on the News-Times site now. I'm currently processing the video from the meeting and I'll update this post with the footage as well as the statement of denial that was approved by the commission.

You can download the resolution of denial by clicking here (.pdf format). The portion of the resolution that pertains to the denial goes as follows:

NOW THEREFORE BE IT RESOLVED, that the City of Danbury Planning Commission, after review of said Application materials, receipt of Staff comments and consideration of all information incorporated into the record, and based on its knowledge and experience of conditions in the area of the project site and its observations of the use and operations of the existing transfer station in Danbury, hereby denies said Petition for Special Exception and Application for Site Plan Approval; and

BE IT FURTHER RESOLVED, that the reasons for said denial are as follows:

1. The proposed use fails to meet the Requirements for Approval in Section 10.C.4 of the City of Danbury Zoning Regulations;
2. The site plan fails to comply with the City of Danbury Zoning Regulations, Sections 6.C.2.a.(1), 8.A, and 8.B.1.b.(1)(a) and 10.D.4.c.;
3. The Application fails to comply with Section 1.D.3 of the City of Danbury Zoning Regulations; and
4. The Application is incomplete.

AND BE IT FURTHER RESOLVED, that the reasons for said denial are more specifically stated below.

1. The proposed use fails to meet the Requirements of Approval in Section 10.C.4 of the City of Danbury Zoning Regulations.

Section 10.C.4 of the City of Danbury Zoning Regulations states the following:

“No petition for a special exception or special permit shall be granted unless such petition is in compliance with all provisions of these Regulations including, but not limited to, all requirements specified for the appropriate zoning district, all requirements for overlay zone and supplemental regulations, as applicable, and all additional requirements specific to the special exception or special permit.

1. Additional Requirements.

In addition to the requirements specified above, no special exception or special permit shall be approved unless the Planning Commission or Zoning Commission, respectively, shall have found that the proposed use:

(1) will not emit noise, smoke, glare, odor, or vibration or other conditions which will create a nuisance having a detrimental effect on adjacent properties;

(2) is designed in a manner which is compatible with the character of the neighborhood;

(3) will not create conditions adversely affecting traffic safety or which will cause undue traffic congestion; and,

(4) will not create conditions harmful to the natural environment or which will jeopardize public health and safety.

In the review of petitions for special exceptions or special permits, the Planning Commission and Zoning Commission, respectively, may impose such reasonable requirements as may be necessary to insure compliance with these conditions of approval.

b. Special Exception Site Plans.

(1) Approval of a petition for a special exception, or approval with conditions attached, shall include approval of the site plan submitted at the time of petition, modified as necessary to include all conditions lawfully required by the Planning Commission.

(2) In the case of a special exception, where the use is to be served by either the public water supply system or the public sewage disposal system, a statement must be obtained from the appropriate city agency advising if sewer and/or water service will be made available for the project involved.”

The project site is located in the IG-80 Zoning District. As stated in the Zoning Regulations:

“The purpose of this district is to provide an area for manufacturing, assembly, and product processing of a more general industrial nature than permitted in the IL-40 district. Large lot areas are required to provide an appropriate buffer for the heavy industrial uses that are permitted. This district is also appropriate for planned industrial uses organized in an industrial park setting in suburban locations.”

This purpose statement has remained intact even though the City, in October 2007, approved amendments to the district that included, among other things, the deletion of a transfer station as a special exception use in the IG-80 zone unless said transfer station was in existence prior to the effective date of the amendment. The purpose of the amendments was to ensure that allowed uses were consistent with the purpose and intent of the district, that residential zoning districts were better protected from various uses, and that design features were incorporated to promote compatible development with adjacent uses and improve the attractiveness and functionality of development. Amendments were approved by the City of Danbury Zoning Commission and became effective on October 15, 2007.

The Planning Commission acknowledges that the Application was received on October 3, 2007, subsequent to the close of the public hearing on said amendments but prior to their approval and effective date. It does however, acknowledge that the IG-80 zone and the land in the immediate vicinity of the project site contains a mix of uses ranging from an automotive repair facility and the municipal sewage treatment plant/public works complex to adjacent multi-family residential uses. The parcel directly west of and abutting the project site contains public housing managed by the Danbury Housing Authority. The closest residential structure is, based on testimony in the record, approximately 235 feet from the proposed structure on the project site. Between the property line of the project site and the Danbury Housing Authority residential structure there is a parking area and playground on the Housing Authority’s site. Several multi-family housing communities have been developed in the area in over the past 10 years and the former municipal landfill as well as the State emissions testing facility on Plumtrees Road have closed. The Planning Commission, based on evidence in the record, adoption of the City-sponsored Zoning Regulations, and its experience in land use development within the City, recognizes the changing nature of the land uses in the IG-80 zone and the areas surrounding the zone in this location.

A. Section 10.C.4.a.(1)

Based on record, the Planning Commission fails to find that the proposed use will not emit noise and odor that will create a nuisance having a detrimental effect on adjacent properties.

1. Noise

The Planning Commission, in consideration of a grant of special exception, is required to make a finding that the proposed use will not emit noise that will create a nuisance having a detrimental effect on adjacent properties.

Documentation and testimony provided by representatives of the applicant noted that in March 2007 noise measurements taken around the perimeter of the proposed facility resulted in a measurement of 56-58 dBA at the City of Danbury Housing Authority complex. Since the time of day that the measurements were taken was not established, the measurements cannot be considered the background noise levels at various times of the day.

The applicant’s testimony is that operations inside the building will generate noise levels up to 80 dBA. However, it is their opinion that such levels will be sufficiently attenuated 10 feet from the building and therefore no increase in background noise levels will result from operation of the proposed use at the site perimeter. The Planning Commission, during the course of the public hearings, requested the applicant provide a cumulative noise assessment considering not only the interior facility operations but the inherent noise associated with truck movements as they await entry into the building, accelerate and maneuver through the site as well as activities undertaken outside the building. Additional testimony by the applicant indicated it measured noise levels resulting from the operation of equipment on the adjacent site of Putnam Automotive. The applicant’s expert extrapolated its noise findings to the project site, which it described as using similar equipment. It is the applicant’s position that the facility as designed, the walls that surround the facility, and the landscaping proposed at full maturity will reduce any increase in noise to background levels. The Planning Commission respectfully disagrees. It finds that a succinct and definitive noise assessment study was not submitted by the applicant to support its position. Rather, the Planning Commission considers the testimony of the applicant’s noise expert to be not only confusing but unsubstantiated.

The Planning Commission finds that the applicant did not present sufficient documentation and analysis to sustain its position and failed to consider the cumulative impact of operational noises on adjacent uses. In addition, the Planning Commission recognizes that noise emanates from heavy vehicle travel on public roadways. The Planning Commission also notes its own experience with being able to hear activities associated with a similar transfer station facility off site of the location of that transfer station. The Planning Commission notes that it considers such off site operational noises as a nuisance to adjacent properties. Based on the record and its own experiences and observations, the Planning Commission cannot find that the proposed use of the site, including both interior and exterior operations, will not result in noise levels creating a nuisance having a detrimental effect on adjacent properties, specifically the adjacent residential uses.

2. Odor

The Planning Commission, in consideration of a grant of special exception, is required to make a finding that the proposed use will not emit odors that will create a nuisance having a detrimental effect on adjacent properties.

The applicant acknowledges that the operations within the building will emit odors. Such odors are inherent in the handling of municipal solid waste, recyclables, and construction and demolition debris. To mitigate odors emanating from operations interior to the facility, the applicant proposes installation of an odor management system for the facility. The system is proposed to utilize filters for particulate matter, activated carbon impregnated with potassium permanganate for odors and ultra violet light for virus and bacteria. It is the applicant’s position that such a three tier system as proposed is “state of the art”. The applicant’s experts have provided written testimony that they are not familiar with any solid waste handling facility currently operating that uses an odor management system that provides for particulate, odor and bacteria/virus capture and treatment to prevent these elements from migrating off the site. The Planning Commission concurs that a system as proposed is complex and may significantly reduce odors inside the structure. It also notes however, that the maintenance protocol is untested.

While the proposed odor management system may reduce odors emanating from the operations within the building, the Planning Commission, based on its experience with solid waste transfer stations that handle municipal waste and heavy vehicles transporting said waste, finds that odors are likely to result from said activities and that such odors can be smelled off site. The Planning Commission finds that these odors create a nuisance having a detrimental effect on adjacent properties. The applicant has provided no testimony relative to the control of odors emanating from idling vehicles loaded with decomposing solid waste nor did it sufficiently address odors from transfer trailers relocated from inside the structure to the northwest corner of the site awaiting export. These transfer trailers may be stored for extended periods of time. As noted in Section 4.C below, the Statement of Operations plan submitted by the applicant provided for mulch to be placed on top of transfer trailers containing municipal solid waste that are stored on the site. There is no evidence on the record that use of mulch will reduce odors. In addition, the Planning Commission notes that decomposing wood products also emit odors.

The Planning Commission finds that the applicant did not present sufficient documentation and analysis to sustain its position and failed to consider odors emanating from storage containers. In fact, the applicant’s air system expert testified that transfer trailers stored will likely emit odors beyond the project site property lines due to decomposing municipal solid waste especially when air temperatures exceed 90 degrees. The Planning Commission notes its experience with the existing transfer station on White Street in Danbury and agrees that during summer months, and at other times during the year, the operations at that facility emit odors which the Planning Commission finds offensive and a nuisance to adjacent properties. Therefore, based on the evidence in the record and its own experiences, Planning Commission cannot find that the proposed use of the site will not result in odors that will create a nuisance having a detrimental effect on adjacent properties, specifically the adjacent residential uses.

There are no reasonable requirements that could be imposed by the Planning Commission that would ensure compliance with Section 10.C.4.a.(1) of the Zoning Regulations.

B. Section 10.C.4.a.(2)

Based on the record of the Application and its own experiences in approving site development plans, the Planning Commission finds that the proposed use is not designed in a manner which is compatible with the character of the neighborhood. The Planning Commission acknowledges this lot is located in the IG-80 Zoning District and is adjacent to other industrial uses. It is, however, also adjacent to a well-established public housing development.

As noted, the project site was created by virtue of a free split and a variance issued to reduce the minimum required lot width. The lot is considered a flag lot with the rear portion of the lot wider than the access way. The 90 foot wide access way includes the driveway or internal roadway from Plumtrees Road to the building which is located at the rear of the lot. The main portion of the lot is located behind 14 Plumtrees Road. The applicant proposes to construct an 11,000 square foot building to operate a transfer station and volume reduction facility, a 128 square foot scale house and three outdoor storage areas for tires, brush/stumps and trailers/containers on the 3.3 acre site. Associated site improvements also include on site parking, access driveways, landscaping, grading, retaining walls and drainage improvements. The applicant proposes that the facility will receive and process approximately 500 tons of municipal solid waste and construction and demolition debris daily.

The Planning Commission finds that the configuration of the lot and existing topography in conjunction with the operational requirements of the use have forced the building design and lot layout as proposed. The four sets of delivery doors face west, directly in view of the adjacent residential use. The topography has been altered to create a development pad that accommodates the change in grade required by operations inside the building. Thus, the higher elevation is on the west side of the building, facing the adjacent residential properties, while the lower elevation is on the east, adjacent to other industrial uses. The west side of the building is where deliveries are to be made. All vehicular traffic will circulate in a one-way flow around the west side of the building climbing a driveway grade to a maximum of 12 percent in certain locations. Transfer trailers accepting such waste will be located and loaded on the inside of the east side of the building and will either descend the site driveway to exit the site or be hauled to the northwest corner of the site for outdoor storage.

The orientation of the building and one way access, while meeting the applicant’s objectives from an operational standpoint, is not, in the opinion of the Planning Commission in consideration of the adjacent residential use, compatible with the character of the neighborhood, specifically the adjacent multi-family residential use.

C. Section 10.C.4.a.(3)

The Planning Commission, in consideration of a grant of special exception, is required to make a finding that the proposed use will not create conditions adversely affecting traffic safety or cause undue traffic congestion.

1. Traffic Safety

Traffic safety is a function of existing traffic volumes, projected volumes based on the land use proposed, roadway geometry and distribution, evaluation of accident rates, and driver habits.

Different land uses generate different volumes and different vehicle types. To assess the traffic safety impacts of a proposed special exception use, the Planning Commission requires applicants to submit a Traffic Impact Analysis. The contents of the required Traffic Impact Analysis are identified in Section 10.D.11.b of the Zoning Regulations. The analysis considers both on site traffic safety conditions as well as traffic safety on the public roadways. The Commission acknowledges that the applicant submitted the required Analysis.

The applicant’s traffic expert testified and presented documentation evaluating the traffic safety impacts of the proposed use. Then, in response to comments issued by the City Traffic Engineer/Traffic Authority, the applicant’s traffic expert submitted a response document dated January 23, 2008. The applicant’s traffic expert concluded that, in its opinion, the proposed development will result in “modest traffic” which will “not create an unreasonable impact on the relevant roadway system.” The Planning Commission, based upon evidence in the record, upon reports from the City Traffic Engineer/Traffic Authority it finds credible, and upon its own experience and observations, respectfully disagrees. It is, therefore, unable to make the finding that the proposed use will not create conditions adversely affecting traffic safety. Its reasons are outlined below.

As to on-site circulation, the Planning Commission is required, pursuant to Section 10.D.11.a(1), to ensure that all proposed uses for which a site plan is required provide for ingress and egress to the site which will not adversely impact the normal flow of traffic or normal safe conditions of the roadways. The proposed use will be accessed off of a driveway located on Plumtrees Road. The applicant has identified an area on the site plan for a southbound turn lane into the site although it has not designed the turn lane nor presented the design for review as is required by the Zoning Regulations. This issue is more fully addressed in Section 2.C. below. The applicant did not provide a northbound ingress left-turning lane on Plumtrees Road into the site as was recommended by the City Traffic Engineer/Traffic Authority to improve traffic safety and ingress into the site. Failure to include this turning lane does not ensure public safety and safe flow of traffic and conditions on Plumtrees Road.

The driveway has been designed to provide an acceptable radius at its intersection with Plumtrees Road and the grade within 100 feet of Plumtrees Road is also found to be acceptable. However, the Planning Commission notes that the driveway sight distance for the left turn egress does not fully meet State of Connecticut Department of Transportation criteria. It acknowledges that its own Traffic Engineer/Traffic Authority opined that while not meeting the criteria, the sight distance was within an acceptable range. Based on its personal experiences and observations, the Planning Commission respectfully disagrees. Vehicle speeds were surveyed by the applicant and evidence recorded that indicates that the 85^th percentile speed of motorists traveling northbound on Plumtrees Road, which would be the sight distance direction that vehicles exiting the site would look, is 41 miles per hour. This is 16 miles per hour over the posted speed limit of 25 miles per hour. The applicant indicated it would install a speed monitoring sign to alert motorists of actual speeds in an attempt to slow them down. The Planning Commission is concerned that when fully loaded 20-25 ton capacity transfer trailers are exiting the site driveway, such transfer trailers will move slower and therefore require the minimum sight distance required to ensure a safe turning movement. The Planning Commission finds that the driveway design and proposed mitigation in terms of a speed sign fails to ensure safe egress from the site and fails to ensure safe conditions on the roadway for vehicles traveling on Plumtrees Road in the vicinity of the site driveway.

As to the submitted Traffic Impact & Access Analysis, both the City Traffic Engineer/Traffic Authority and the applicant’s traffic expert agree as to the existing and proposed volumes and vehicle types to be generated by the proposed use. Waste transfer stations are predominantly dependent on the use of heavy vehicles for its operations. The parties agree that 92% of the trips generated by the facility would be composed of heavy truck traffic (collection trucks and transfer trailers). Collection trucks can measure up to 40 feet in length while transfer trailers can measure up to 70 feet in length. The safe operation of these vehicles on the public roadway and through a developed site depends not only on roadway geometry and weight of the load, but also on driver operation.

The parties agree as to the description of the existing roadway network adjacent to the site, including Plumtrees Road, and in the immediate area which includes Newtown Road. As noted by the applicant, the high level of traffic, numerous driveways and conflict points result in a high number of accidents due to the limited traffic control at unsignalized access drives to commercial development and shopping centers. Based on evidence in the record, the State of Connecticut Department of Transportation has identified at least six locations along Newtown Road as major accident sites in the State. And, as noted by the City Traffic Engineer/Traffic Authority, the majority of accidents in this location are rear-end collisions or result from turning movements. The applicant’s response to concerns over the number of accidents in this location was to redistribute volumes or divert vehicle trips along certain segments of the roadway recognized for its high number of accidents. It also understated the safety performance of the intersection of Newtown Road and Plumtrees Road by not evaluating State accident data and it presented no mitigation measures. The applicant specifically left the evaluation of required roadway improvements to others. The Planning Commission finds, based on the opinion of the City’s Traffic Engineer/Traffic Authority, that diverting trips to avoid an evaluation of impacts and understating safety performance at a critical intersection is not consistent with standard engineering practice and fails to ensure safety to the motoring public.

In its initial Analysis, the applicant distributed site generated traffic northerly and southerly on Plumtrees Road. The level of service summary under this scenario identified a deteriorating level of service for one movement at the Newtown Road/Plumtrees Road intersection. The Planning Commission notes that even if the delays are not necessarily long enough to impact the overall level of service at this or the other two intersections analyzed, such delay means that vehicles will be waiting longer to make certain turning movements. The Planning Commission finds that longer waiting times often result in driver frustration and attempts to make unsafe traffic movements. Therefore, such delays represent deteriorating traffic conditions.

The record also shows that the applicant revised its traffic distribution after submission of the initial Analysis. This revised distribution and analyses was done, in part, as a result of the applicant’s modification to the site driveway in an attempt to prohibit right turns out of the site. In the revised Analysis, no traffic was assigned to the southerly section of Plumtrees Road towards Shelter Rock Road. The Planning Commission agrees with the City Traffic Engineer/Traffic Authority that the revised Analysis is flawed. While such design modifications may be well-meaning, the Planning Commission agrees with the City Traffic Engineer/Traffic Authority that such modifications do not effectively stop all such movements. Therefore, there is likely to be site generated traffic exiting the site onto Plumtrees Road heading in a southerly direction. The Planning Commission notes its experiences in other applications relative to the use of such driveway design measures in making this finding. Absent assignment of traffic to this section of roadway and an evaluation of the potential traffic, especially considering the applicant’s acknowledgement that waste will likely come from the adjacent municipality of Bethel, Connecticut located south on Plumtrees Road, renders the Analysis incomplete. To compound the flawed and incomplete analysis, there is deterioration in the level of service at the critical Newtown Road/Plumtrees Road intersection under the no-build and build scenario as well as an increase in timing delays. The Planning Commission again finds this representative of deteriorating traffic safety conditions.

Based on evidence in the record and its experience, the Planning Commission fails to find that the proposed special exception use will not result in conditions adversely affecting traffic safety.

2. Traffic Congestion

Traffic congestion is a function of traffic volumes and roadway conditions. These are generally described above and included in the record. However, there is disagreement between the experts relative to congestion and mitigation specifically for the westbound vehicles on Newtown Road waiting to turn left onto Plumtrees Road to access the site (identified as the WBL movement in the Analysis, dated January 23, 2008, pages CA22 and CA36).

The parties agree that increased heavy truck traffic will be generated by the proposed use. The Analysis indicates that the WBL movement for the 95^th percentile volume exceeds the capacity of the turning lane. The length of the turning lane is the queue length. The City Traffic Engineer/Traffic Authority indicates that the queue length will increase by 33 feet or more as a result of site generated traffic. The Planning Commission understands this to mean that the length of the turning lane is insufficient to accommodate the volume of traffic expected to turn left at the intersection. As a result, vehicles may back up into the through lanes while awaiting a green turn cycle and, consequently, through bound traffic will be impeded. This vehicle back up, especially considering the volumes already existing in the through lanes as well as the expected large heavy vehicle types waiting to turn, will cause undue traffic congestion on Newtown Road. The Planning Commission also notes that based on its experiences, large heavy vehicles move slower, especially when filled to capacity, and therefore queue times may be extended beyond that which has been identified.

The applicant has indicated that traffic signal timing was included in the revised Analysis as a mitigation measure. No physical roadway improvement was proposed to mitigate the queue length deficiency. In fact, the applicant indicated that any mitigation should be implemented by others. The Planning Commission finds the City Traffic Engineer/Traffic Authority’s comment that signal timing adjustment was not, in fact, in the Analysis to be credible and therefore the effectiveness of said mitigation could not be confirmed. Additionally, the Planning Commission, like the City Traffic Engineer/Traffic Authority, finds that the applicant’s failure to mitigate this impact is significant and unacceptable and will result in unsafe traffic conditions and traffic congestion on Newtown Road.

Due to the configuration of the lot, the layout of the site, the types of vehicles that will utilize the facility, and existing roadway conditions, the Planning Commission finds that there are no conditions that can be imposed that will improve traffic safety and alleviate undue traffic congestion resulting from the proposed use. Additionally, the Planning Commission finds that due to the above specific characteristics of the proposed use, expected impacts are greater than other uses not requiring a grant of special exception.

Based on evidence in the record and its experience, the Planning Commission fails to find that the proposed special exception use will not cause undue traffic congestion.

D. Section 10.C.4.a.(4)

Section 10.C.4.a. (4) requires the Planning Commission find that the proposed use will not create conditions that will jeopardize public health and safety.

The position of the Planning Commission related to traffic safety and congestion on the public roadway system is noted above. Based on these findings, the Planning Commission fails to find that the proposed use will not result in conditions that jeopardize public safety.

It is the position of the Planning Commission that failure to comply with the minimum required sight distance as specified by State criteria, as stated above, will create conditions that will jeopardize public safety.

It is also the position of the Planning Commission that failure of the applicant to provide a northbound right turn ingress lane on Plumtrees Road will create conditions that will jeopardize public safety.

The Planning Commission has also reviewed the site layout and on-site circulation pattern to determine if, in its opinion, the plan as proposed creates conditions that will jeopardize public health and safety. In this regard, the Planning Commission finds the following:

• Since the interior roadway is almost entirely ringed by retaining walls, portions of the internal roadway may reach grades of 12%, and because roadway width is a maximum of 20 feet in certain locations, there is little room for driver error. The design is a function of the lot shape, self-created by the applicant. Considering the type of vehicles utilizing the site, the interior roadway should be wider and less steep. In combination, the site layout and circulation pattern create conditions that jeopardize public safety.
• During inclement weather conditions, the Planning Commission finds that the restrictive design, as noted above, may result in conditions that jeopardize public safety. The layout cannot be improved due to site size and topography.

2. The site plan fails to comply with the City of Danbury Zoning Regulations Sections 6.C.2.a.(1), 8.A, and 8.B.1.b.(1)(a) and 10.D.4.c.

A. Section 6.C.2.a(1): Landscape Requirements

Section 6.C.2.a(1) requires the front yards of lots in the IG-80 zone to be landscaped in their entirety except for permitted driveways. As previously noted, the project site is a flag lot. Flag lots are defined in Section 2.B. of the Zoning Regulations as “A lot so shaped and designed that the bulk of the lot is set back from the street behind other lots with street frontage.” Flag lots contain an access way that provides space for a driveway to proceed to a street from the bulk of the flag lot. The bulk of the project site is that portion of the lot upon which the proposed structure is to be located. It is west of, and behind, the lot located at 14 Plumtrees Road.

The Zoning Regulations also define the front lot line as “The line separating the lot from the street; a street lot line; or, on a flag lot, the interior lot line most parallel to and nearest the street from which access is obtained.” The front lot line for the project site is the north/south property line separating the bulk of the lot from the adjacent lot at 14 Plumtrees Road. The front yard is defined in the Zoning Regulations as the “… open space extending the full length of the front lot line to a yard setback distance specified herein for front yards.” The IG-80 Zone requires a front yard of 40 feet.

In accordance with the Zoning Regulations, the entire width of the 40 foot wide front yard along this property line is required to be landscaped except for permitted driveways. The site plan submitted by the applicant on January 29, 2008 contained revisions to the plan that resulted in the landscaping that had previously been located in the front yard as required pursuant to Section 6.C.2a(1) to be relocated onto the adjacent lot of Putnam Automotive (14 Plumtrees Road). Although the owner of Putnam Automotive is the applicant/agent for the Application and indicated in testimony and noted on the plans that easements would be recorded to place the landscaping on the adjacent site, the location of the landscaping fails to comply with the Zoning Regulations. Failure to comply with requirements of the Zoning Regulations cannot be cured by obtaining easements.

The landscaping had been relocated to the adjacent site to accommodate a wider internal driveway around the east side of the building. The wider driveway was proposed by the applicant and included on the revised site plan drawings in response to comments issued by the City Traffic Engineer/Traffic Authority relative to access to the loading bays and potentially unsafe backing maneuvers and to address comments from the Fire Marshal relative to access by emergency vehicles. There are no revisions to the site plan that can be made that would render the plan in compliance with the requirement that the front yard be landscaped in its entirety while satisfactorily addressing the comments of City Staff to ensure the safety of those utilizing the site and providing emergency services thereto.

Therefore, the Planning Commission finds the site plan fails to comply with Section 6.C.2.a(1) of the Zoning Regulations.

B. Section 8.A: Erosion and Sedimentation Controls

Section 8.A. of the City of Danbury Zoning Regulations, Erosion and Sedimentation Controls, requires an application for site plan approval to include proper erosion and sedimentation controls. Such controls are necessary to prevent soil erosion and sedimentation from occurring as a result of non-agricultural development. Plans are required to include proper provisions or controls for the protection of soil surfaces during and after construction in order to promote the public safety, health, convenience and general welfare of the community. Section 8.A.3 of the Regulations requires that no person shall do any grading, stripping, excavating or filling or undertake any earth change unless a valid erosion and sedimentation control permit is obtained from the City of Danbury Health Director or Environmental Impact Commission. The Planning Commission acknowledges that a permit for regulated activities was issued by the Environmental Impact Commission on February 20, 2007. This approval however, was not issued on the site plan ultimately submitted by the applicant to the Planning Commission. This last revised plan fails to comply with the grading standards identified in Section 8.A.2(c.)(4) of the Zoning Regulations. Said Section requires that the “The bottom edge of excavations or fill shall be a minimum of five (5) feet form the property line. Fill shall be located so that settlement, sliding, or erosion will not deposit fill on adjoining property.” The location of grading and wall structures on the adjacent site is in violation of this standard.

As noted above, the widening of the driveway on the east side of the building submitted on the last set of revised site plans required the wall structure and associated landscaping to be shifted east onto the property of Putnam Automotive. The wider driveway was proposed by the applicant in response to comments issued by the City Traffic Engineer/Traffic Authority relative to access to the loading bays and potentially unsafe backing maneuvers and to address comments from the Fire Marshal relative to access by emergency vehicles. Relocation of these site development components renders the plan in violation of Section 8.A.2(c.)(4) and the applicant incapable of obtaining the required permit. There are no revisions to the site plan that can be made that would render the plan in compliance with the grading standard enabling the City to issue an erosion and sedimentation control permit and at the same time satisfactorily address the comments of City Staff to ensure the safety of those utilizing the site and providing emergency services thereto. In addition, there are unresolved erosion and sedimentation control issues that have not been fully evaluated by the appropriate City authority.

The Planning Commission finds that the site plan fails to comply with Section 8.A.2(c.)(4) of the Zoning Regulations.

C. Section 8.B.1.b.(1)(a): Standards for Motor Vehicle Access, Design, Street Improvements and Section 10.D.4.c: Site Plan Requirements, Construction Details

Sections 8.B.1.b.(1)(a) requires that the street providing access to a lot shall be suitably improved to accommodate the amount and types of traffic generated by the proposed use. Construction details for any proposed roads, bridges, driveways and associated aprons, sidewalks, retaining walls and curbing, prepared by a Connecticut licensed professional engineer, are required to be shown on the site plan drawings. In response to comments raised by the City Traffic Engineer/Traffic Engineer, the applicant has proposed to widen Plumtrees Road to allow for a southbound right turn lane into the site. The area for the proposed widening is shown on the plans as a cross-hatched area with the following note “12’ wide right turn lane to be constructed along Plumtrees Road. Proposed lane shall be constructed to conform to all geometric and public improvement standards as set forth by the City of Danbury Engineering Department.” As stated, the plans fail to provide the detailed design information relating to the proposed roadway widening. Said details are required to be submitted and reviewed by City Staff during the course of the site plan review process to ensure that improvements can be constructed, such improvements to be proposed to protect the safety of the motoring public on the adjacent roadways as well as those using the site.

The Planning Commission finds that the site plan fails to include specific details of the roadway improvements as required pursuant to the Section 10.D.4.c of the Zoning Regulations. Not having reviewed construction details, including grading, drainage and horizontal and vertical alignments, the Planning Commission cannot ensure the protection of public safety nor is there a presumption that all standards required can and will be met. The Planning Commission acknowledges, however, that had the applicant provided such details as required earlier in the process rather, on their own volition, than not at all, said details could have been reviewed by City Staff during the site plan review process.

The Planning Commission finds the site plan fails to comply with Sections 8.B.1.b.(1)(a) and Section 10.D.4.c of the Zoning Regulations.

3. The Application fails to comply with Section 1.D.3 of the City of Danbury Zoning Regulations.

The Commission notes that Sections 16A-91 and 16A-92 of the City of Danbury Code of Ordinances designate the transfer station located at 307 White Street, Danbury, CT as the “designated transfer station” in the “Greater Danbury area” to which all municipalities belonging to the Housatonic Resource Recovery Agency “shall cause their acceptable waste to be delivered for transfer” to the regional resource recovery facility. Approval of the Application would allow the location of a transfer station in a place not permitted by City Ordinance.

Section 1.D.3 of the City of Danbury Zoning Regulations provides in pertinent part “…It is not intended by these Regulations to repeal, abrogate, annul, or in any way to impair or to interfere with any existing provisions of law or regulation or covenants or with any rules, regulations, or permits previously adopted or issued pursuant to law, provided, however, that where these Regulations impose greater restrictions than are imposed or required by such existing provisions of law or ordinance or covenants or by such rules, regulations, or permits, the provisions of these Regulations shall control.” The provision of the Zoning Regulations allowing transfer stations in the IG-80 zone upon receipt of special exception approval “impairs or interferes” with Ordinance Section 16A-92, which limits the permissible site of a transfer station to 307 White Street. Accordingly, Section 1.D.3 provides a basis for the Planning Commission to deny the petition for Special Exception and Application for Site Plan Approval.

At the public hearing, the applicant argued that the above ordinances are invalid and unenforceable because they violate the Commerce Clause of the U. S. Constitution (Article I, Section 8, cl. 3). The Corporation Counsel advises the Planning Commission, however, that under the well-settled law of the state, the adjudication of such constitutional issues is beyond the jurisdiction of this Commission, and is reserved to our courts. Savage v. Aronson, 214 Conn. 256,268 (1990); see Cioffoletti v. Planning and Zoning Comm’n, 209 Conn. 554, 551 (1989). Accordingly, the Planning Commission declines to address this issue.

4. The Application is incomplete.

On January 29, 2008, the applicant submitted revised site plans and documentation for consideration by the Planning Commission. The Public Hearing was closed on January 30, 2008. The Planning Commission finds that the concerns of the Department of Planning & Zoning Staff and the City Traffic Engineer/Traffic Authority as noted in memoranda both dated March 4, 2008 are credible and raise the following issues that have not been resolved relative to both the petition for a Special Exception and the Application for Site Plan Approval.

A. Grading

The site plan identifies several retaining walls that must be constructed to accommodate site development as proposed. Sheet 3 of 8 of the site plan package, entitled Grading Drainage and Utility Plan, indicates the retaining walls will be constructed with reinforced concrete. A detail of the wall construction is provided on Sheet 7 of 8.

On several occasions during the public hearing and in memoranda from the Department of Planning and Zoning, Staff raised concerns relative to the proximity of the retaining walls and associated grading required to construct said walls to the property line(s). Staff questioned the feasibility of construction as proposed absent encroachment onto adjacent properties. The applicant testified that grading rights would be obtained as needed.

The Planning Commission finds that there is no certainty that the applicant can obtain such grading rights; therefore, the feasibility of construction for the proposed use and ability to develop the site in accordance with the site plan is unknown. Absent such off-site grading rights, the Planning Commission cannot affirm that the site plan as proposed can be constructed or that it adequately protects public safety and welfare. The walls are a definitive requirement to construction of the site as proposed for the Special Exception Use. The Planning Commission has no reasonable basis, based on the record, to assume that the applicant can obtain grading rights from adjacent properties, specifically over land owned by the City of Danbury located on the northern border of the developable portion of the lot.

B. On-Site Vehicle Storage & Maintenance

On January 29, 2008, after several requests by the Commission through Staff, the applicant submitted a written Statement of Operations that identified, among other things, the types of equipment that would be necessary for the daily operations of the transfer station. The heavy equipment identified in the document includes a wheel loader, a tracked or wheeled excavator, skid loaders, and a yard tractor. Other than verbal testimony by the applicant during the public hearing relative to the use of a skid loader inside the building used to transfer waste from the tipping floor to the transfer trailers, no other equipment had been identified during the public hearings. The public hearing closed on January 30, 2008. The Planning Commission received final Staff comments on March 4, 2008.

The identification of these vehicles and the indication in the Statement of Operations that vehicle maintenance would be performed on site raised new questions by Staff relative to site operations that could not then be addressed by the applicant as the public hearing had been closed. The Planning Commission, in considering the Statement of Operations and testimony of the applicant, is concerned relative to site size and layout relative to operations of the proposed use. The internal roadway width, the designation of other areas on site for storage, and the necessity of maintaining clear access for emergency services purposes restricts outdoor storage of heavy equipment, especially during daily operations. The Planning Commission finds that, based on information in the record, such issues (i.e., vehicle maintenance activities and the storage location of on site heavy vehicles given the tipping size floor and the site layout) therefore remain unresolved. As such, the Planning Commission finds the operation of the use proposed fails to ensure public safety.

C. Storage of Mulch and Use of Mulch On Top of Transfer Trailers

In the Statement of Operations, submitted on January 29, 2008, the applicant for the first time, identified that a 6 inch thick layer of mulch would be placed on top of any transfer trailer containing municipal solid waste that is not slated for immediate removal from the site. Use of mulch is intended to reduce odor impacts. The applicant also indicated the trailers would be covered in a canvas material.

Transfer trailers “will be stored and parked on-site in the designated area as shown on the site plan, west of the facility building.” The applicant has not, however, specified a time restriction on the storage of such filled transfer trailers.

The Planning Commission finds that the introduction of the use of mulch, albeit intended to mitigate or control odor, raises several other questions that cannot be addressed by the applicant or resolved by the Planning Commission as the public hearing is closed. These questions, as noted in Staff correspondence, are related to the quantity of mulch intended to be stored, the storage location, and potential impacts associated with a pile of decomposing wood. Additionally, the applicant never discussed how such mulch would be placed on top of these trailers and how, if at all, this operation may impact or restrict regular site operational activities.

The storage of mulch on the project site and its use for operational purposes is unresolved. Based on this, the Planning Commission cannot ensure that the public interests are protected.

D. Extended Hours of Operation

Testimony by the applicant throughout the course of the public hearing on the Application as well as the traffic analyses presented by its traffic expert indicated that the hours of operation of the facility would be from 6 a.m. until 4.p.m. Monday through Saturday, except for holidays. The Statement of Operations, submitted on January 29, 2008, for the first time indicated that “waste loading, out-shipment and miscellaneous facility housekeeping hours may extend beyond the waste receiving hours to account for time necessary for daily preparation, materials processing and end-of-the-day maintenance and clean up activities.” The Planning Commission finds that the provision of this new information raises significant issues of concern relative to site operations associated with the proposed special exception use that have not been fully evaluated. Comments of the Planning Commission and staff cannot be addressed by the applicant nor resolved to the satisfaction of the Planning Commission as the public hearing record on the Application is closed. Due to the absence of responses to comments on new information presented by the applicant, the Planning Commission cannot find that the use protects public welfare and safety.

E. Extended Storage of Transfer Trailers

The Statement of Operations, submitted on January 29, 2008, indicates that “Bulky waste and C&D debris will be received, sorted, and recoverable items separated for diversion from the disposal stream. Markets for recovered materials are expected to change from time-to-time….Recovered items will be removed and placed into containers.” The applicant did not provide testimony regarding the length of time such materials would be stored on site pending removal to off-site locations or markets.

Based on this vague description in the Overview of Operation, page 8 of the Statement of Operations, the Planning Commission notes its concern relative to the length of time the materials will be stored on site and the impacts associated with such storage requirements. Said impacts include, but are not necessarily limited to, utilization of storage slots in the northwest corner of the site for extended periods of time which would limit or restrict the storage of transfer trailers containing municipal solid waste. The issue of the storage requirements for the use and a determination as to whether the number of storage spaces are sufficient to accommodate the trailers remains unresolved as the public hearing on this Application is closed. Absent resolution of these issues, the Planning commission cannot ensure the use and site plan adequately protects the public welfare or safety.

F. Revisions to the site of Putnam Automotive, 14 Plumtrees Road

The applicant submitted revised site plan drawings on January 29, 2008, the day before the public hearing was required to close. The site plan revisions including many changes to the site in response to comments by the Commission, City Staff, and the public. These changes affected the adjacent property of Putnam Automotive, located at 14 Plumtrees Road. The owner of Putnam Automotive is the applicant/agent for MSW Associates LLC. The modifications to the 14 Plumtrees Road site layout that resulted from revisions on the 16 Plumtrees Road site mandates submission of a revised site plan for 14 Plumtrees Road. An application for revised site plan approval has not been submitted to the City of Danbury for review or approval. Therefore, the Planning Commission cannot determine whether the modifications proposed as part of the Application are in conformance with the Zoning Regulations relative to the 14 Plumtrees Road site or if such modifications render that site non-conforming. Whether the existing use of 14 Plumtrees Road as an automotive collision and repair facility can continue to operate in a manner that protects the public health, welfare and safety remains unresolved and therefore the Application is incomplete; and

AND BE IT FURTHER RESOLVED, that the applicant should be aware that the site plan is inconsistent with the requirements of the permit issued by the City of Danbury Environmental Impact Commission (“EIC”) in February 2007 as noted below:

1. Site Plan Inconsistency with EIC Permit #737.

The applicant obtained a permit to conduct regulated activities on the project site in association with a Site Development Plan submitted to the EIC. Said Plan was prepared by Anchor Engineering Services for MSW Associates LLC and dated December 29, 2006. The Plan set consisted of 7 sheets.

The applicant submitted revised site plan drawings to the Planning Commission on January 29, 2008. These revised plans vary from those upon which the EIC permit was issued, specifically details related to site grading, driveway design and width, landscaping, and location of retaining walls. The permit specifically indicates that “Any developmental activities other than that shown on the approved site plan are subject to further review and approval by the Danbury Environmental Impact Commission.” Therefore, the issues surrounding the validity of the permit are unresolved.

I HEREBY ATTEST THAT THIS RESOLUTION IS THE TRUE AND ACCURATE RESOLUTION AS ADOPTED BY THE CITY OF DANBURY PLANNING COMMISSION ON APRIL 2, 2008 BY A VOTE OF 4-0.