Planning Board Decides Against Revisiting McDonald’s Decision

In a packed Town Hall conference room last Wednesday night, the Planning Board weighed whether or not it could reconsider one condition in . After hearing from a variety of lawyers — including the developer’s lawyer, an opponent’s lawyer, the board’s lawyer and the three lawyers who happen to be members of the Planning Board itself — they decided not to reconsider.

This came about even though the lawyer for the Planning Board, Christine Patterson, told members they did have the authority to reconsider their decision.

“It’s crystal clear to me that you have the authority to reconsider this,” said Patterson.

Although McDonald’s received plan approval in December, they did not like a condition placed on to the approval requiring them to return to the Planning Board in the event the state builds a new ramp for Route 95. The Department of Transportation has such a ramp on its long-term capital improvements list, but as of now there is no indication a new ramp will be built in the foreseeable future.

Still, McDonald’s was looking for certainty that it could add a left-turn exit onto New London Turnpike in the event that it lost its primary entrance and exit due to a new ramp. In the plan as approved, customers would have to travel on a DOT easement to access the McDonald's from the west. That access would disappear if DOT built a new ramp, leaving only right-turn entrance and exits onto New London Turnpike as approved.

Wednesday night, lawyer Robert Stolzman, who represented site developer Nick Cambio, argued that it was completely within the Planning Board's power to reconsider its decision.

"'The Planning Board shall have the power to grant such waivers and/or modifications from the requirements of the land development subdivision approval process as may be reasonable and within the general purpose and intent of the provisions of these regulations,'" Stolzman read from the town ordinance.

Still, some members remained unconvinced.

"Whether we have the authority or not, there’s a question of whether or not it would be good planning practice to simply, upon request, reconsider decisions we have made," said member Bill Stone, a lawyer.

"I don’t think the absence of something means we automatically have authority," said member Stephen Brusini, also a lawyer. "If we don’t have authority, then it’s not properly before us tonight. If it’s not properly before us tonight, then I don’t think we vote on it one way or another and I think it ends there."

Member Michael Donegan, also a lawyer, said he thought that appeal to the Zoning Board was "the mechanism provided."

"If you look at the zoning regulations … they have a specific process for reconsideration," Donegan said, noting that there was no such stipulation in the Planning Board regulations.

According to the Planning Department, if the full approval is appealed, it would be heard by the Zoning Board, but under Article 41 of the town regulations, "major changes" need only return to the "permitting authority," in this case, the Planning Board.

Other members of the Planning Board said they would support the applicant's reconsideration request.

"I take Christine’s advice seriously," said member Jason Gomez. "I would vote that we have the authority to hear the new evidence." Members Jack Simpson and Chuck Newton also supported hearing the reconsideration. In the end, however, board chairman Brad Bishop declined to take a formal vote.

"I do not want a board divided to consider this position," he said after all the other members had weighed in, "so I would prefer that we move this to the Section 41 procedure."

Section 41 is the appeal process that would take the matter to the Zoning Board. Then, if approved there, it would return to the Planning Board.

There was no word last week as to whether or not McDonald's would appeal.