Court rules in favor of Metcalf Asphalt Paving

NORTH CANAAN — The North Canaan Planning and Zoning Commission has been ordered by Litchfield Superior Court to issue an approval for a site plan application to B. Metcalf Asphalt Paving. 

Owner Ben Metcalf had submitted a site plan application for his existing operation in the East Canaan area of North Canaan. 

The Planning and Zoning Commission (P&Z) returned Metcalf’s application to him along with his permit fee at a  meeting in May 2018. His attorney was not allowed to speak at the meeting. 

The commission justified this decision by claiming that Metcalf was looking to do warm or hot asphalt mixing on the property and that use is not included in the list of permissible activities in North Canaan.

There have been several court hearings involving this issue, with Metcalf as the plaintiff and the P&Z as the defendant. On April 20, Judge John D. Moore ordered the town to give Metcalf the permit he is seeking.

In his 15-page decision, which can be found here, Moore says that the warm/hot mix is in fact already allowed at the East Canaan Road property, following permission granted for that property in 2016.

In going over the facts in the case, Moore said in his decision that, “In its January 25, 2016, application for a special permit, Metcalf identified one current and past use as ‘[p]rocessing equipment to utilize millings.’ Benjamin Metcalf, the president of Metcalf, testified credibly that the processing of millings involves a warm asphalt mix processing. This application also indicated that proposed uses under the special permit were to include ‘[p]rocessing of asphalt, brick and concrete.’ The plaintiff did not limit its request to cold asphalt processing. On February 8, 2016, Metcalf received a special permit and site plan approval from the commission for ‘earth materials processing and removal.’ The prior approval runs with the land and authorizes, generally and without limitation to cold processing, the processing of asphalt.

“As a result, the 2018 site plan application was simply that: a site plan application. It was not garnished with a special permit twist.”

Moore said that the P&Z had 65 days after receiving the application to make a decision on the site plan. It simply returned the check, but the judge said that, “The defendant’s failure to approve, modify or deny the application within sixty-five days results in approval. In other words, ‘Not to Decide is to Approve.’”

B. Metcalf 4.2020.pdf