P&Z tells Commons to keep age limit

NORTH CANAAN — After months of discussion and two public hearings, the Planning and Zoning Commission (P&Z) last week voted to deny the removal of an age restriction on a local condominium development.

Blackberry River Commons, located on two private roads off West Main Street near the town center, holds a special permit issued by P&Z in 2006 for a 55-and-over age-restricted community. At the time, targeting to the “active adult� market seemed to be a good plan.

But after more than two years, only one of 21 homes has sold and there has been a downturn in the market. It seemed time to rethink the original plan. Realtors have reportedly turned away a large number of interested buyers in a slightly younger age group.

After filing an application for a change to the special permit, an attorney for the developer suggested it was not needed, saying that the age restriction was not a condition of the special permit and need only be agreed upon by the parties immediately involved (the developer and the one couple who resides there).

But P&Z Chairman Steven Allyn said the age restriction was part of the declaration, which is a document attached to the property deed that states how the property is to be used.

There was extensive discussion as to how much the age restriction weighed in on the previous P&Z decision. Martin McKay, then the chair and currently an alternate member, said he did not recall it being a major factor.

The hearing on the proposed change, which opened July 20, brought out numerous neighbors with concerns about impacts that were covered in the initial permitting process, such as traffic and prices that were out of proportion with the North Canaan market.

Some spoke adamantly against adding more children to the neighborhood. Others supported concerns by Canaan Fire District Warden Anthony Nania in regard to children’s safety. The fire district operates the sewer treatment plant adjacent to the development. The two properties share an access road.

No members of the general public spoke at the Aug. 18 hearing session.

Nania spoke briefly of his safety concerns and of negotiations that are now underway with the developer for help in paying for an automatic gate into the plant that could cost as much as $20,000.

A total of $40,000 in upgrades to the gate and fence would be needed to satisfy safety concerns, according to Nania. Any portion not covered by the developer would come from district tax dollars.

Attorney Mark Capecelatro, representing Blackberry River Commons residents Lance and Ann Beizer, also spoke on behalf of the developers’ attorney, Charles Ebersol, who was called away that day on an emergency.

Capecelatro disputed the safety claims, reiterating what both attorneys have said and documented before: that many neighborhood children play near the plant and swim in the river behind it.

They have done so since long before the plant was built, and there is no record of anyone wandering into the plant and being hurt, or being hit by a vehicle using the access road.

“The safety argument is without foundation,� Capecelatro said. “There is no evidence except for unfounded fears.�

He read a long letter from Ann Beizer, stating reasons why younger families would have a positive impact on the community.

Newly hired contractor Scott Volpe, who is also a licensed Realtor, has been working on moving the project forward. Among the issues he addressed was the accusation by some members of the public that the age restriction was merely a ploy by the developer to get the project approved.

“No developer in his right mind would let a project sit on the market for two years knowing it wouldn’t sell,� Volpe said.

During the commission’s regular meeting, which followed the hearing, Chairman Allyn said no report was ever submitted about the impacts of the increase in population the development would bring. He said the focus of P&Z is to preserve public safety.

“Financial issues or the builder’s intentions to go forward or not are not a P&Z consideration,� Allyn said.

He made a motion to “maintain the original declaration of a 55-plus age-restricted community.�

Alternate Frank Montagna seconded the motion after Allyn confirmed for him that the developer could come back with a new permit application. The vote was unanimous.

The decision brought a puzzled response from the developer, the Beizers and Capecelatro.

As Chairman Allyn made the motion, questions remained about the process. Proper procedure calls for a chair to do no more than request a motion.

The option to reapply for a permit was also questioned, as the project is already partially built.

Town Attorney Judith Dixon attended the Aug. 18 meeting, conferring with Allyn before the hearing and taking a seat with the commission for the decision. She made no comment and was not asked for advice during P&Z  deliberations.