Friday, March 1, 2013

The Foot in the Door, and the Elephant in the Room

Ed McKeon is a former Middletown Eye editor, and resident of Pearl Street.  He is challenging the expansion of the MX Zone, and recommended that former residences in the ID Zone be regulated as a residential zone with adaptive reuse allowed.  This is an opinon piece.

 I'm old enough to remember the days when door-to-door salesmen plied their trade on neighborhood streets, going house to house selling things like encyclopedias, soap, brushes and accordion lessons (all you need to do is put a small down payment on this beautiful Italian accordion today).  They were about as welcome at the door as the dinnertime telemarketer is today.

At Wednesday's Planning and Zoning meeting, those days came to mind again, as the few proponents of an MX Zone change, said, again and again, as if scripted, that the zone change would only "open the door" to future consideration of development projects.

Foot in the Door

Those door-to-door salesmen were persistent, and I learned at a young age that you addressed them through the screen door, but you never opened it, because once they got a foot in the door, they'd very soon be in your living room demonstrating the features of the latest vacuum cleaner and all its attachments.

The foot in the door is the advantage you never want to give to the slick salesman. Or the land-use lawyer.  Or the property developer.

When Ralph Wilson, who represented Centerplan at the recent Planning and Zoning hearing, asked the commission simply to "open the door" to future decisions, he was pleading for nothing more or less than what any self-respecting door-to-door salesman would want.  He argued that the MX text amendment would only provide the Planning and Zoning Commission with future opportunities to pass judgment on proposed development.  Of course, he knows better than anyone, a canny lawyer can bend an opportunity into a certainty.

The reasons drive-thru banks, ambulance dealers and used-car lots are on the list of approved uses in the MX zone, is because some lawyer, representing some powerful interest, pleaded with the P&Z to add opportunity in the MX.

This "open the door" imagery became a meme at the meeting, and was repeated by nearly everyone who supported the MX, all five of them.  In a letter from the Chamber of Commerce's Larry McHugh, the theme was sounded.  In a letter from Mayor Dan Drew, Drew trumpeted the opportunities an opened door would bring.  Lee Osbourne, who stands to make a fortune when his property is sold to Centerplan, talked about opening a door to "possibilites."  And Bob Landino, who will appear later as "the elephant in the room," stepped out from the anonymity of his Aquistion Holdings LTD, mask to humbly plea for nothing more than an open door to explore opportunites that would help the community.

There's nothing more that a developer or a land-use attorney adores than a door opened, even a crack, so they may insert their size 11 wingtips.

Let's keep the door shut.

Elephant in the Room

I think it was Rani Arbo who first mentioned "that which shall not be named," the elephant in the room which everyone at the meeting knew was Centerplan.  Bob Landino admitted as much himself late in the meeting.

All who were about to testify were warned by the Commission Chairman that the hearing was a "legislative" issue, and not about a specific development or developer (the elephant in the room).

But this particular legislative issue was about real zones, on real streets, with real addresses, where real people live, and so it was impossible, for too long, to avoid calling Centerplan out, or talking about the proposal for commercial development on Washington Street.  By the way Centerplan announced the development, at a very real press conference a few months back.  At that point, it wasn't an elepant in the room, it was a 15,000 square foot building with three floors, and a hundred parking spaces.

But at the P&Z meeting, the development whose name could not be spoken became "the elephant in the room."

And the elephant was mentioned again and again, because, in fact, it was the only reason a zoning amendment was being considered in the first place.

There would have been no proposed zone amendment, no hearing and no testimony if Centerplan did not seek the experience of land-use attorney Ralph Wilson to attempt to legitimize a very real development, on the very real corner of Pearl and Washington Streets.
Centerplan obviously realized that trying to build a development on land not zoned for it was going to be a problem.  So, like a lackluster kicker, instead of putting in the hard work needed to suceed, they decided to move the goalpost.  If they weren't going to be able to convince the P&Z to let them develop where they shouldn't then, by god, they would change the law so that P&Z couldn't resist their charm.

Landino, who testified last in the public hearing, admitted that he'd have to go home and tell his kids that he was "the elephant in the room."

Let's only hope that residents of nearby neighborhoods aren't left playing the role of the man with the broom assigned to clean up after the elephant in the parade.

The Middletown Planning and Zoning Commission meets Wednesday, March 13, 7 PM, in City Hall's Council Chambers to deliberate and vote on a change in the MX Zone which will allow for the development of strip-mall commercial development along Washington Street and South Main Street.


Anonymous said...

I believe an even better metaphor can be made for the similarity of this "plan" to the Death by a Thousand Cuts".

John Hall said...

I confess much ignorance about the Zoning Code and how projects are approved or rejected. I am concerned about the prospect, described in other posts and comments on the "eye", that if the proposed text amendment were adopted, the P&Z Commissioners would approve a large commercial development, especially one with a drive-thru, based on the argument that the threshold requirements have been met and there is no longer a basis for rejection.
When I look at the Zoning Code section 44 regarding Special Exceptions, I see a list of many reasons why a special exception could be denied, and it would seem that many of the reasons apply to the Washington St. National Historic District with all its traffic, safety, and air quality issues. Here's the URL for the Zoning Code section 44 on when a special exception can be granted.
I am not arguing here that the proposed text change is innocuous. But I invite others more familiar with these matters to clarify the P&Z Commission's ability to deny special exceptions. What is their history of doing so? I look forward to reading illuminating comments from others who know the regulations and process better than I do.

Middletown Eye (Ed McKeon) said...

With precedent and positive traffic reports in their favor, the Commission does not have the power to deny, or if they deny, they must present counter proof or face the threat of lawsuit. Opening the door, even a crack, for developers is a danger that's absolute, in my opinion.

I think our Commissioners are dedicated and have good intent, but sometimes the decision is out of their hands.


John Hall said...

Thanks, Ed. Do you know what the history is on denials (if any) of special exception applications? Does anyone out there know this, who has followed P&Z? I know the P&Z denied application for the drive-thru at McDonalds around 1994 or so, but that was reversed about 2 years later. I don't know of a drive-thru that has been denied since then, and many have been accepted.

David Sauer said...

I don’t have experience with Middletown’s P&Z, but I have some understanding of the basic legal issues here. If a use is allowed in a zone by special exception it means that the use is considered to be an appropriate use for the zone, subject to special scrutiny as to the exact location within the zone. The classic example is a public school in a residential zone. It is considered an appropriate use, but the special exception is required to allow consideration as to whether the adjacent roads can handle bus traffic, etc. Only the considerations set out in the zoning code can be considered in deciding whether or not to grant the special exception.

The URL you provided to Section 44.04 of the zoning code provides the findings that the board has to make in considering every special exception. Initially, it should be pointed out that although 44.04 says P&Z “may” grant a special exception when certain findings are made, courts have held that because the use is considered appropriate for the zone, if an applicant for a special exception satisfies the requirements set forth in the zoning code he MUST be given the exception. The findings that P&Z has to make include things like impact on traffic, orderly development and property values. These standards do not give the board as much discretion as you might think, however. Courts have held that a special exception cannot be denied on the basis of impact on traffic unless the effects of a proposed special exception use would have a significantly greater impact than a use permitted “of right”. For example, if an “of right” use of the property, i.e., one that does not require a special exception, could result in an increase of 100 cars per day a special exception use would have to have a significantly greater impact on traffic than that increase. Also, the requirement of 44.04.06 that the proposed development not tend to depreciate the value and character of adjoining property does not reference the surrounding neighborhoods. Adjoining properties are only those properties that share a common boundary with the parcel for which the permit is sought. The effect of the proposed use on the value of properties that are nearby but not touching the property are not considered in this section. Section 44.04.02 does protect the neighborhood in terms of health and safety, but again if an applicant for a permit can show that the adverse effect on the surrounding neighborhood not significantly greater than the impact from some “of right” use the special permit cannot be denied on that basis.

In addition to the standards in 44.06 each specific type of special permit has its own requirements that must be satisfied for a special exception. In this case those requirements were written by the developer and obviously were written with his specific proposal in mind.
Some supporters of the text amendment have implied that the special exception process would enable P&Z to use discretion in deciding what development to allow, so that Chipotle and Starbucks could be allowed, but Burger King or another pharmacy could be denied. That idea is simply not true. By law P&Z must grant an application for a special permit if the requirements for the permit are met. P&Z must base its decisions only on the factors in the zoning code and regulations. Without a solid factual basis they cannot approve of Starbucks but not another Dunkin’ Donuts, or approve Chipotle but not Burger King. They also cannot approve some retail uses, but then refuse a permit for Walgreens because they think there are already enough pharmacies in town.

Ed McKeon said...

Thank you, David.

John Hall said...

That is important information, David. Thank you for taking the time to explain this. The proponents of the zoning text amendment made it sound as if this simply "opens the door to consideration" of another use. You are saying (if I understand it correctly, and put it in simpler terms) that the text amendment virtually ties the hands of the P&Z Commission to allow this additional use, as long as the specific conditions are met.

Ed McKeon said...

That's exactly what David is saying John.

If the text amendment is passed, there is no real way for the P&Z to say no to a special exception that fits the parameters outlined in the amendment.

In the case of Centerplan, they wrote the amendment, so surely they will find a way to make their plans fit the amendment. In fact, the amendment was likely written to fit their plans specifically.


Middletown Eye (Ed McKeon) said...

David, may we publish your comment as a separate commentary on the Middletown Eye?

David Sauer said...


Feel free to post it.

Ed & John:
I don't want to make it sound like P&Z is just a rubber stamp. They have to listen to all of the evidence and then make a decision based on the zoning law and regs. Since much of what they have to decide involves predictions of the future and somewhat vague concepts like whether it fits that plan of development there is certainly some judgment involved, but they have to base their judgment on the evidence presented and if the evidence shows that the developer has met the requirements for a special permit they must grant it.

There are essentially two sets of requirements that Centerplan has to meet for the special permit. There are requirements for all special permits found in Section 44 of the zoning code, then each specific type of permit has its own unique requirements. Centerplan wrote the unique requirements, but not the requirements of Section 44.