(as of September 27, 2021)
Beginning with...
2009 B. Metcalf Asphalt Paving purchases 6 acre piece of property on Allyndale Road from Mulville Zoning Board approves his pre-existing of non-conforming use that Mulville had which did not include making asphalt - only grinding up existing asphalt for his own use within the site.
2013 Metcalf purchases 26 acre parcel of property on Allyndale from Mulville
May 13, 2013 - Mark Shipman writes letter to commission saying pre-existing non conforming use should extend to 26 acre piece in addition to 6 acre piece of property - Allyndale Road
Metcalf Attorney Mr. Shipman's letter admits there are wetlands on the property.
2016 January 25, 2016 Metcalf applies for Special Permit. Property listed as 19.93 Acres, Casey Hill Property
Per Robert D'Andrea Letter on behalf of Mr. Metcalf dated 1/11/16:
"Metcalf respectfully submits that it is entitled to continue to use the Parcel for quarrying and and processing, including the processing of existing brick, concrete and asphalt. The existing brick, concrete and asphalt would be crushed in size and then used for base material in paving, similar to the processing of stone from a quarry"...
D'Andrea on behalf of Mr. Metcalf stated that the above was categorized as "clean fill" by DEEP - no permit is required to "accept, process or recycle clean fill."
Per D'Andrea on behalf of Mr. Metcalf - "the processing of cold patch will create no adverse environment consequences. The sand and gravel would be used dry and mixed with a room temperature, environmentally green emulsifier, and then placed in bags for use off site." Rain and Winter conditions "will require a dryer for wet sand and gravel. The dryer is a portable unit on a trailer", this process in "done is a closed environment". D'Andrea on behalf of Mr. Metcalf states the this process is "cold patch manufacturing". This approval of "cold patch manufacturing" appears to be in violation of town zoning regulations governing expanding a "non-conforming" use of property and needs to be reexamined.
Per Ruth Mulcahy Letter to Ben Metcalf - 2/11/16 States P&Z Commission voted to approve Special Permit Site Plan application for Earth Materials processing and removal in an Industrial Zone. Additional proposed berms shall be constructed with a minimum of disturbance to the existing buffer and existing trees. Metcalf met with any neighbors to discuss plant - Robin Markey met with him and D'Andrea the day of the Public meeting (February 2016) and was told by Ben that there would never be anything but Cold Patch produced by him.
Metcalf's Special Permit Approved and Metcalf purchases the property 2018 April 30, 2018 - Neighbors receive letter via regular mail (was not certified) from Ben with his intent to build a $4 million 'warm asphalt' plant. (see information sheet compiled by B. Metcalf Asphalt in “Comments”).
May 14, 2018 - P&Z Meeting - Metcalf submits application - Commission turns it away siting Asphalt production is not an approved land uses in the North Canaan P&Z Regulations.
Metcalf Sues - 5/21/18
June , 2018 - Bill Linkovich, a neighbor complains of terrible odor and reports to town officials.
Steven Allyn (acting Zoning Enforcement Officer) and the Building Official went to the Metcalf site on 15 Allyndale Road and witnessed hot materials used in cold patch processing being dumped onto the ground. After attempts to reach Metcalf and obtain safety data sheets were not responded to, the P&Z Commission issued a cease and desist for the hot asphalt processing/manufacturing.
Metcalf appeals the Cease & Desist and the issue goes to the Zoning Board of Appeals.
Now there are two issues at issue in the Town of North Canaan:
The Original Application - Turned away and now awaiting a trial in Litchfield Superior
1. Court Briefs and Motions have been filed - Date to schedule the Trial Date is March 12.
2. The Cease and Desist - before the Town of North Canaan Zoning Board of Appeals.
Oct-18 Community Group forms (STAP - Stop The Asphalt Plant) and meets with Mary Jones of Toxics Action Center
Community Group forms "Steering Committee": STAPEC LLC
Sally Green
Robin Markey
Dean Keister (Limestone Trout Club)
Dorothy Kelley
Dolores Perotti
Joe Cieslowski
Brian Sprauge
Bernie Re
Metcalf's Attorney files an Amended Complaint on November 26, 2018 - siting the 65 day rule. The North Canaan PZ Committee failed to act within 65 days of the original application filing (that was turned away because asphalt production is not on the approved land use list in the Zoning Regulations. This would give the Judge the power to approve the application without approval by the Town.
Steering Committee meets with Town Attorney - Randy DiBella of Cramer & Anderson. Advised group to file a motion to intervene.
Group hired Kevin Nelligan at Town Attorney's recommendation to act as intervener.
Motion to Intervene filed at the court.
Metcalf's attorney files counter motion to prevent intervention indicating that the 65 day rule applies and group had knowledge to intervene since May 2018.
Also, somehow this is now a "portable plant" (not subject to the DEEP rule regarding no asphalt production within 1/3 mile of residences or water courses (Blackberry River). This was NOT how it was presented to neighbors - "fact" sheet from Metcalf attached.
Also, Tim Abbott from Housatonic Valley Association has written letter to Town of North Canaan indicating property is on wetlands and Metcalf failed to disclose this on his application. He also stated that "The property is located on and adjacent to areas with significant superficial aquifer recharge potential".
2018/2019 Two meetings of ZBA have been held - with continuances - third meeting scheduled for January 26, 2019. ZBA closed the opportunity for further public comment and we are awaiting a ruling on the Cease and Desist.
2018/2019 Two meetings of ZBA have been held - with continuances - third meeting scheduled for January 26, 2019.
January 26, 2019 January ZBA Meeting held allowing Public Comment - several citizens spoke
February 20, 2019 February Zoning Board of Appeals unanimously lifts Cease and Desist Order on 15 Allyndale Road
March 8, 2019 Judge denies motion to Intervene filed with the Superior Court. This Intervention was intended to bring forth the environmental issues connected with Asphalt Plants.
April 2019 STAP group fills out application to amend text in zoning regulations to prohibit manufacturing, production and or storage of asphalt in all Zones in North Canaan
Click UPDATE for March 2021 asphalt zoning amendment court case update, STAP letter, Selectmen's and news article.
In the most recent of these cases the court has ruled that the Zoning Regulations amendment, "To Prohibit the Manufacturing, Production and/or Storage of Asphalt in all zones" did not prohibit B. Metcalf Paving from implementing a previous court approved site plan but it could not void the amendment “...contingent upon some event that has not and indeed may never transpire.” It is important to note here that this amendment does not necessarily apply to any pre-existing and permitted activity regarding asphalt activity that this amendment now prohibits.
2009 B. Metcalf Asphalt Paving purchases 6 acre piece of property on Allyndale Road from Mulville Zoning Board approves his pre-existing of non-conforming use that Mulville had which did not include making asphalt - only grinding up existing asphalt for his own use within the site.
2013 Metcalf purchases 26 acre parcel of property on Allyndale from Mulville
May 13, 2013 - Mark Shipman writes letter to commission saying pre-existing non conforming use should extend to 26 acre piece in addition to 6 acre piece of property - Allyndale Road
Metcalf Attorney Mr. Shipman's letter admits there are wetlands on the property.
2016 January 25, 2016 Metcalf applies for Special Permit. Property listed as 19.93 Acres, Casey Hill Property
Per Robert D'Andrea Letter on behalf of Mr. Metcalf dated 1/11/16:
"Metcalf respectfully submits that it is entitled to continue to use the Parcel for quarrying and and processing, including the processing of existing brick, concrete and asphalt. The existing brick, concrete and asphalt would be crushed in size and then used for base material in paving, similar to the processing of stone from a quarry"...
D'Andrea on behalf of Mr. Metcalf stated that the above was categorized as "clean fill" by DEEP - no permit is required to "accept, process or recycle clean fill."
Per D'Andrea on behalf of Mr. Metcalf - "the processing of cold patch will create no adverse environment consequences. The sand and gravel would be used dry and mixed with a room temperature, environmentally green emulsifier, and then placed in bags for use off site." Rain and Winter conditions "will require a dryer for wet sand and gravel. The dryer is a portable unit on a trailer", this process in "done is a closed environment". D'Andrea on behalf of Mr. Metcalf states the this process is "cold patch manufacturing". This approval of "cold patch manufacturing" appears to be in violation of town zoning regulations governing expanding a "non-conforming" use of property and needs to be reexamined.
Per Ruth Mulcahy Letter to Ben Metcalf - 2/11/16 States P&Z Commission voted to approve Special Permit Site Plan application for Earth Materials processing and removal in an Industrial Zone. Additional proposed berms shall be constructed with a minimum of disturbance to the existing buffer and existing trees. Metcalf met with any neighbors to discuss plant - Robin Markey met with him and D'Andrea the day of the Public meeting (February 2016) and was told by Ben that there would never be anything but Cold Patch produced by him.
Metcalf's Special Permit Approved and Metcalf purchases the property 2018 April 30, 2018 - Neighbors receive letter via regular mail (was not certified) from Ben with his intent to build a $4 million 'warm asphalt' plant. (see information sheet compiled by B. Metcalf Asphalt in “Comments”).
May 14, 2018 - P&Z Meeting - Metcalf submits application - Commission turns it away siting Asphalt production is not an approved land uses in the North Canaan P&Z Regulations.
Metcalf Sues - 5/21/18
June , 2018 - Bill Linkovich, a neighbor complains of terrible odor and reports to town officials.
Steven Allyn (acting Zoning Enforcement Officer) and the Building Official went to the Metcalf site on 15 Allyndale Road and witnessed hot materials used in cold patch processing being dumped onto the ground. After attempts to reach Metcalf and obtain safety data sheets were not responded to, the P&Z Commission issued a cease and desist for the hot asphalt processing/manufacturing.
Metcalf appeals the Cease & Desist and the issue goes to the Zoning Board of Appeals.
Now there are two issues at issue in the Town of North Canaan:
The Original Application - Turned away and now awaiting a trial in Litchfield Superior
1. Court Briefs and Motions have been filed - Date to schedule the Trial Date is March 12.
2. The Cease and Desist - before the Town of North Canaan Zoning Board of Appeals.
Oct-18 Community Group forms (STAP - Stop The Asphalt Plant) and meets with Mary Jones of Toxics Action Center
Community Group forms "Steering Committee": STAPEC LLC
Sally Green
Robin Markey
Dean Keister (Limestone Trout Club)
Dorothy Kelley
Dolores Perotti
Joe Cieslowski
Brian Sprauge
Bernie Re
Metcalf's Attorney files an Amended Complaint on November 26, 2018 - siting the 65 day rule. The North Canaan PZ Committee failed to act within 65 days of the original application filing (that was turned away because asphalt production is not on the approved land use list in the Zoning Regulations. This would give the Judge the power to approve the application without approval by the Town.
Steering Committee meets with Town Attorney - Randy DiBella of Cramer & Anderson. Advised group to file a motion to intervene.
Group hired Kevin Nelligan at Town Attorney's recommendation to act as intervener.
Motion to Intervene filed at the court.
Metcalf's attorney files counter motion to prevent intervention indicating that the 65 day rule applies and group had knowledge to intervene since May 2018.
Also, somehow this is now a "portable plant" (not subject to the DEEP rule regarding no asphalt production within 1/3 mile of residences or water courses (Blackberry River). This was NOT how it was presented to neighbors - "fact" sheet from Metcalf attached.
Also, Tim Abbott from Housatonic Valley Association has written letter to Town of North Canaan indicating property is on wetlands and Metcalf failed to disclose this on his application. He also stated that "The property is located on and adjacent to areas with significant superficial aquifer recharge potential".
2018/2019 Two meetings of ZBA have been held - with continuances - third meeting scheduled for January 26, 2019. ZBA closed the opportunity for further public comment and we are awaiting a ruling on the Cease and Desist.
2018/2019 Two meetings of ZBA have been held - with continuances - third meeting scheduled for January 26, 2019.
January 26, 2019 January ZBA Meeting held allowing Public Comment - several citizens spoke
February 20, 2019 February Zoning Board of Appeals unanimously lifts Cease and Desist Order on 15 Allyndale Road
March 8, 2019 Judge denies motion to Intervene filed with the Superior Court. This Intervention was intended to bring forth the environmental issues connected with Asphalt Plants.
April 2019 STAP group fills out application to amend text in zoning regulations to prohibit manufacturing, production and or storage of asphalt in all Zones in North Canaan
May 2019 Public hearing attended by over 200 people, Metcalf’s lawyer tied to stop anyone from speaking because the public notice was missing 2 letters. It read STAP instead of STAPEC which was the fault of the zoning enforcement officer. Many people spoke against the asphalt plant and one person who works with Metcalf spoke for not voting in favor of the text. The commission voted in favor of the new text, "To Prohibit the Manufacturing, Production and/or Storage of Asphalt in all zones." and published it the next day.
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Metcalf filed a lawsuit to challenge amendment.
July 2019 Judge threw out the 1st lawsuit because the plaintiff objected to the Planning and Zoning commissions decision yet the commission had handed the application back (May 2018) without making any decisions.
August 2019 Metcalf’s lawyer demanded an automatic approval in a letter to the town.
September 2019 At the regular meeting of Planning and Zoning, the commission had a public comment where townspeople spoke out again against an asphalt plant and an attorney for STAP told the commission that the only remedy is mandamus not automatic approval because of the 65 day rule. The town attorney and Metcalf’s attorney were not there. The commission went into executive session and when they came out, they voted unanimously against granting automatic approval for the reasons of protecting the health, safety and welfare of the town. (As it is stated in their regulations)
Metcalf filed his third lawsuit against the town (docket #LLI-CV19-6023364-S)
STAP hired Kevin Nelligan to try to intervene in that lawsuit
Metcalf filed his third lawsuit against the town (docket #LLI-CV19-6023364-S)
STAP hired Kevin Nelligan to try to intervene in that lawsuit
October 2019 Intervenor status for STAP was denied
Awaiting court decision on the 65 day rule and how it applies
Court hearing set for court ordered approval of Warm-Mix Asphalt Plant Citizens of North Canaan: On December 3, 2019 the court will hear arguments regarding the (writ of) * mandamus filed by B. Metcalf Asphalt Paving, Inc against the Town of North Canaan. The writ requests that the court order the approval of the Site Plan Modification for Metcalf to build a Warm-Mix Asphalt Plant in North Canaan that the town returned without action. The court will hear arguments from both sides. If you are available to attend this hearing in support of the Town in objection to this court ordered approval to site an asphalt plant in North Canaan it could be a powerful statement to the court. But please, if you attend, no demonstrative exhibits like signs and props for they would not be appropriate in the courtroom.
Location: LITCHFIELD JUDICIAL DISTRICT COURTHOUSE AT TORRINGTON
50 Field St, Torrington, CT 06790
Date: December 3, 2019
Time: 11 a.m.
On April 20, 2020 the Superior Court of Litchfield County ordered, "...the PZ to issue an approval of the 2018 site plan application "..to "add a warm mix asphalt plant.." on the B. Metcalf Asphalt site in the Village of East Canaan in the town of North Canaan. Read full court decision HERE.
Court hearing set for court ordered approval of Warm-Mix Asphalt Plant Citizens of North Canaan: On December 3, 2019 the court will hear arguments regarding the (writ of) * mandamus filed by B. Metcalf Asphalt Paving, Inc against the Town of North Canaan. The writ requests that the court order the approval of the Site Plan Modification for Metcalf to build a Warm-Mix Asphalt Plant in North Canaan that the town returned without action. The court will hear arguments from both sides. If you are available to attend this hearing in support of the Town in objection to this court ordered approval to site an asphalt plant in North Canaan it could be a powerful statement to the court. But please, if you attend, no demonstrative exhibits like signs and props for they would not be appropriate in the courtroom.
Location: LITCHFIELD JUDICIAL DISTRICT COURTHOUSE AT TORRINGTON
50 Field St, Torrington, CT 06790
Date: December 3, 2019
Time: 11 a.m.
On April 20, 2020 the Superior Court of Litchfield County ordered, "...the PZ to issue an approval of the 2018 site plan application "..to "add a warm mix asphalt plant.." on the B. Metcalf Asphalt site in the Village of East Canaan in the town of North Canaan. Read full court decision HERE.
On January 21, 2021 the ZEO says in an email that the amendment that was approved by the PZC is legally faulty and not enforceable, and that the Town Attorney wants us to rescind it because it would render Metcalf's continuing suit against the Town moot.
On February 8, 2021 the ZEO in an email regarding how changes are made to a zoning regulation stated that, "... the amendment case is still in court, there is no Asphalt amendment under current consideration, it was not on the agenda for tonight's meeting. If at some future point the Town decides to address this issue in a different way or with different wording, the public will be given ample notice through a public hearing notice in the newspaper. .."
Click UPDATE for March 2021 asphalt zoning amendment court case update, STAP letter, Selectmen's and news article.
On July 26, 2021 the Superior Court of Litchfield CT in the case that challenged the validity of the asphalt zoning amendment ruled the issue "Moot". (case ruling link http://civilinquiry.jud.ct.gov/DocumentInquiry/DocumentInquiry.aspx?DocumentNo=21121709 ).
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But it is that future event that is still looming over our communities.
September 16, 2021: In the years since the group was formed we have written dozens of Letters to the Editor and Press Releases about the dangers of this asphalt plant. Sent email mailings and postal mailings to thousands and posted to social media garnering support. We have found that people from the source of the Blackberry River to its joining with the Housatonic and adjacent lands are all impacted, and that the concerns about water, air and natural beauty of our area go beyond our focus on the proposed Metcalf asphalt plant. It is a larger picture. We have reforged the Stop the Asphalt Plant organization into the Blackberry River Valley Protection Alliance. Blackberry River Valley Protection Alliance, Inc. (otherwise known as STAPEC, LLC) is an environmental organization with a mission of environmental protection and conservation in North Canaan and adjacent towns in the Blackberry River watershed and its environs. Its mission includes, but is not limited to, protecting the air, the land, the aquifer, wildlife, and the health and general quality of life of area residents and visitors. The organization has applied for a 501(c)(3) tax exemption status that will enable tax deductible contributions. Until that is granted the Coalition of Sound Growth of Norfolk, a section 501(c)(3) organization with allied environmental purposes, will act as a Fiscal Sponsor to the Blackberry River Valley Protection Alliance, Inc.. This relationship will permit donors to make gifts to the Coalition restricted for use by the Blackberry River Valley Protection Alliance, Inc. The Blackberry River Valley Protection Alliance, Inc. remains focused on opposing the siting and development of an asphalt plant in North Canaan, Connecticut due to serious environmental and public health concerns. These efforts will include educating the public and public officials about the risks posed to the environment by the proposed asphalt plant, discussions with administrators and government officials in their administrative (non-legislative) capacities seeking proper application of laws and regulations, legal action to seek compliance with laws and regulations, public education, outreach, and similar activities. To further advance our mission the Blackberry River Valley Protection Alliance, Inc. has been the recipient of a grant from William & Mary Greve Foundation Inc. of Norfolk and NYC. The Greve Foundation supports many environmental efforts including: The Wilderness Society, Norfolk Botanical Gardens Foundation, Scenic Hudson, Inc., The trust for Public Land and Great Mountain Forest to name a few. When asked, why support this organization in North Canaan, Anthony Kiser, President, Director of the foundation replied, “It's our neighborhood too” and added, “It is consistent with our mission of supporting environmental causes for over 40 years”. This generous grant has enabled us to arrange for the legal representation of environmental attorney Bart Halloran who will be “fearless to working with DEEP” on the state level. He is also familiar with the local landscape due to his helping put a stop to the golf club at Yale Farm.
February 2022: The Blackberry River Valley Protection Alliance, Inc. postal mails Dear Neighbors letter to area towns postal patrons asking for support to stop the asphalt plant. Emails An Exciting new beginning Announcement Letter to media outlets and public and state officials.
Please ask Robin at rmarkey20@gmail.com to be placed on our mailing list to get updates regarding this ongoing fight.
The effort to stop this from being permitted by the state of Connecticut now begins.
Find out how you can ask the State to help the town prevent this asphalt plant from being permitted and built at The truth of the Metcalf asphalt debacle is simple.
Follow link for other ways to Voice your objection!
Share this information and our website at https://www.blackberryrivervalleyprotectionalliance.org/
Find out how you can ask the State to help the town prevent this asphalt plant from being permitted and built at The truth of the Metcalf asphalt debacle is simple.
Share this information and our website at https://www.blackberryrivervalleyprotectionalliance.org/
with your Social Media network. Thank you!
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