Middletown First - Stripmall Testimony

I. Introduction: Three Strikes

The so-called “Middletown Square” shopping center is squarely in the wrong place. It has more than three strikes against it: 1) it is one of the largest retail projects to come before the Town of Middletown and is too intense for the location; 2) on a weekday, it adds 7155 car trips to West Main road, one of the most heavily trafficked roadways in town, that already has capacity problems; and 3) it is located in a freshwater wetlands, in Zone 1 of the watershed protection district, and floodplain zone, with one our most fragile brooks running right through it. Size, traffic congestion, and proximity to a sensitive environmental receptor: all make this proposal in the wrong place. Our Comprehensive Plan states very clearly that “development within the areas identified as flood prone should be discouraged.” The Plan also speaks disparagingly about “strip development” along West Main, and urges us to begin using land “more intelligently”.

In order to grant the petitioner a special use permit, the Board of Review, under Article 9 of our Zoning Code, must come up with findings of fact for the 5 special use criteria. Findings of fact are not “findings of developer”. The Board must independently conclude that this project meets these 5 requirements. I maintain that the Middletown Square fails at least 3 of these requirements:

1. It will harm property values in the surrounding area

2. It is incompatible with our Comprehensive Community Plan

3. It is inimical to the public goal of reducing congestion in the streets and avoiding pollution of public
water supplies.

All of the objectionable features of this project are related back to one overwhelming factor: the inappropriate scale and intensity of the project.

II. Diminution of Property Values

The petitioner “alleges” that this enormous commercial project will not significantly diminish nearby property values, but has presented no information into the record, other than a self-serving assertion, to support a finding of fact in this matter. For the Board to properly assess this requirement, the petitioner should be asked to underwrite the cost of an independent valuation impact study by a certified real estate appraiser, chosen by the Board. Very intense commercial uses may create more development pressure for land, and increase some commercial values, but they can also diminish the value of residential properties which lie near the site, or along major roadways leading up to the site. This is because the resale value of homes that lie along heavily traveled roads, like West Main, drop as the quality of residential life is diminished. The Board should require an independent finding on this fact.

III. Incompatible with the Comprehensive Community Plan

Middletown Square is inharmonious with many of the land use goals stated in the CCP. This is critical, because the Plan is more than just a guide. As the Plan itself states: “The (Rhode Island) law requires that all land use ordinances, regulations and decisions must be consistent with the Comprehensive Plan.”

1. Preserve Open Space: Although the petitioner has offered to preserve the rear portion of this property, much of this land is already an undevelopable wetland. It is important to remember that the portion of the land which is developable represents a reduction of 13 acres of open space. The land behind the mall is largely Stissing soil, which is supposed to remain undeveloped.

Note also that the Plan recommends that the Silveira Farm on West Main Road, is “under pressure to be developed”, but is listed on a chart of open space locations “whose protection/preservation is in public interest” as a potential recreation area.” The Plan’s comment on this land: “Wetlands make up part of this site. Open space could be combined with adjacent open area to form a linear park.” Instead of a linear park, we are getting linear sprawl.

2. Protect Watersheds & Protect Water Resources: The Bailey Brook watershed runs directly north to south through this property. Despite the petitioners attempts to present a 5 part stormwater system, the fact remains that technology will fail, and human error will occur, meaning that our water supply, which is impacted by Bailey Brook, is not guaranteed protected from further degradation by the project. For nearly 10 years, Bailey has been listed by the state as an area with “non point pollution problems”. The Urban Runoff Task Force report from 31 years ago, recommended that “action be taken at the local level to control land development and growth to minimize urban runoff”, which comes from commercial development. We were warned nine year ago to “locate land development and growth away from environmentally sensitive areas to minimize urban runoff, particularly in the Bailey Brook watershed.” We are doing just the opposite. As the Conservation Commission has already noted, the Bailey Brook watershed already has urban land uses covering 50% of its buffer zone. The Board can draw the line and say that this is already greater than the watershed average, and more development will not be permitted.

Bailey Brook empties into the North and South Easton Ponds, part of our public water supply reservoir. As the Plan says, these ponds “no longer have their full capacity to catch the runoff from the Bailey Brook Watershed drainage area.” “Due to the potential for flooding and possible contamination of water supplies,” our Plan says, “development within the watersheds of these streams must be carefully controlled.” Given this goal, it makes little sense to push development to the maximum in this area with 107,400 s..f plus a huge asphalt parking lot. This is not “carefully controlled” development, and the complexity of the petitioner’s stormwater system of detention and retention ponds proves that.

The proper position for the town to take about development in a floodplain and an endangered watershed is to accept “zero tolerance” for risk. Our water supply is much more important to protect as a land use than the construction of another shopping mall. The Plan states that the floodplain around Bailey Brook is a sensitive district, and adds: “Construction should be prohibited and natural buffer zones created within these floodplains.” This project, because of its proximity to the Bailey Brook, and the floodplain involvement, is not “worth” the risk of a system failure. Remember that all developers promise to protect streams and brooks, yet the Attorney General of Connecticut is now suing the Wal-Mart corporation in no less than 11 locations for stream pollution. You can be certain that during the public hearing process for each of those developments, the petitioner said he would improve water quality, not harm it. The scale of location of this project make it a threat to Bailey Brook and our water supply, and incompatible with these 2 CCP goals.

As for the freshwater wetlands, the Plan says that there should be a protection district around each wetlands site, because theses locations are “fragile”. The petitioner’s statement that he has avoided “all animal species” by avoiding work inside the wetland itself, and by keeping lights shining away from the wetlands, is a pathetic substitute for a real biodiversity study that looks at the impact on the ecosystem of putting a huge impervious surface, with noise, glare and other changes, next to a wetland habitat. The fact is, the petitioner had done no biodiversity survey, and no idea what the impact will be from this new asphalt neighbor. not just on the leopard frog, but on the whole balance of that larger parcel of land. “The need to preserve wetlands in a natural state has not always been recognized,” the Plan says.

This project is obviously in conflict with the Plan’s recommendations which call for “permanent preservation of open land around watershed areas to protect them from intense development.” We are abandoning our Community Plan if we approve this proposal.

Note: I have not seen the petitioner address anywhere the issue of West Nile breeding in the detention and retention ponds on this location. To what degree will the creation of these large ponds next to a swamp area increase the breeding ground for West Nile virus?

3. Develop Greenbelts Along the steams running through town. This development precludes any greenbelt or public access to Bailey Brook as it runs through this property.

4. Provide incentives to encourage use of existing buildings. The petitioner has presented no effort to inventory existing shopping center space that is blighted or underutilized, instead of creating nearly 13 more acres of impervious land in town.

5. Minimize Curb Cuts Along West Main Road. This project creates at least two more curb cuts along West Main, worsening the in and out traffic congestion at this location.

6. Alleviate Traffic Congestion Caused by Vehicles Transiting the Island. The Middletown Square project is a regional facility. If it had to subsist on traffic from Middletown only, it would fail. This project will generate at least 4,600 car trips per day, based on the Institute for Traffic Engineers Code Book for Land Use Code 820, a shopping center. Signalization of Route 114 will only cause more of the current traffic flow to stop and idle, worsening air quality problems in Middletown. At the time the Plan was written, West Main accounted for more than 1 out of every 3 traffic accidents in Middletown. The functional ability of West Main had been threatened by what the Plan called “scattered roadside development and heavy traffic flow.” The petitioner wants to add more “roadside development” to cure the problem such development created in the first place. “A good deal of the town’s commercial development has converged in strip fashion along these roads,” the Plan said. It has only grown increasingly worse over the past nine years. In fact, the Plan, which suggests that West Main could provide “intensive commercial frontage”, also made it clear that such commercial frontage should be local, and that West Main should “become less important for through traffic” and be “redesigned for local access traffic”—in other words, not a regional feeder road. The distinction is important. “West Main Road,” the Plan notes, “should be considered an optional north-south route, with emphasis on local business access.”

7. Consider Environmental Characteristics When Determining Land Use. Based Zoning on the ability of land to accommodate development. This 55 acre parcel is only partially usable to begin with. The petitioner has tried to squeeze a 107,400 s.f. development on to less than 12 acres of land, thus pushing the project right into the freshwater wetlands and floodplain area. The environmental characteristics of this land suggest that its best use to the town, and cheapest, would be as open space.

8. Use Land More Intelligently. Use land in harmony with natural surroundings. Placing a mall bigger than two football fields into a floodplain close to an endangered watershed is not intelligent land use, and is inharmonious with the natural surroundings. This is simply a “bad spot” for this scale of commercial build out.

9. Establish standards for commercial...development...to prevent health and safety hazards...and harmful effects upon the natural environment. Middletown has enacted a strict Town Center Overlay district. It is not inconsistent with such land use goals to use the Plan as the guide that prevents overscaled projects from having harmful effects on the environment, and the welfare of town residents.

10. Economic Development Studies

The Plan indicates that a “fiscal impact analysis (cost vs. benefits) should be used in Middletown to evaluate all significant new growth and land use changes. The petitioner should be asked to underwrite the cost of such a cost/benefit study, with an independent contractor selected by the Board.

When the Plan was written, nearly one third of the jobs in Middletown were in the retail trade. The proliferation of big retail malls, which are already in plentiful supply within a short distance of this location, can have the impact of creating more blight at existing malls, and deterioration of trade areas in traditional core commercial areas, such as downtowns. This is especially true in Middletown, where the population has fallen over the past decade. In 1992, the Plan predicted that population in Middletown of 19,460 (1990 Census) would rise by nearly 6% to 20,589 by 2000. Instead, population fell to 17,334, or an -11% drop. This means that Middletown today has roughly the same population base it had in 1980 (17,216), and fewer people than it had in 1965 (19,562). The addition of more and more retail space, without regard to market capacity, means that the latest entrants to the market will predominately have to “capture” their sales from existing merchants. If you estimate sales per square foot at the Middletown Square at $250 per s.f., or $26.8 million a year, and assume that 60% of the sales made will be captured from existing merchants in the trade area, this mall could cause a shift of $16 million a year from existing merchants, which would lead to store closures, reduction in property tax payments, and a net loss in jobs. This is why a fiscal impact study needs to be done for this shopping center. (Source of data: Sprawl-Busters). The retail pie in Middletown is falling, and adding more retail space will only serve to cannibalize existing businesses.

The Plan says we should have in hand a fiscal impact study, and the petitioner should be asked to pay for one. Rather than encourage more low wage retail jobs, Middletown would do better to promote a higher use for its developable land, and try to actively replace some of our lost manufacturing/light industrial base. This land—if not used for open space— should be used for low density commercial purposes more respectful of the critical environmental nature of the parcel.

11. Maximize use of existing commercial properties to avoid over development and preserve open space. The petitioner should be required to inventory existing underutilized space before considering the commitment of environmentally sensitive parcels. As the Plan says: “The town should encourage full utilization of existing commercial structures...”

IV. Granting of the permit will result in...conditions inimical to the public health, safety or welfare.

As stated above, this project is located in an area that has had long-standing traffic and environmental problems. The petitioner has tried to suggest that adding “more of the same” will alleviate the traffic and water quality problems. The petitioner suggests that by bringing 4,600 car trips a day to Route 114 he is going to solve an already serious public safety problem through signalization of the intersection and other “enhancements”. This is like saying that gasoline can be used to douse a fire. This roadway is already suffering from level of service problems, and a new major commercial node will make matters worse. The petitioner has tried to brush off town Conservation Commission concerns about air quality deterioration, by theorizing that signalization and turning lanes will lower delays and idling of cars—but traffic lights will guarantee delays of traffic in and out of this facility. The petitioner presents no findings of fact on this important issue. The Board should insist that the petitioner underwrite the cost of an air quality impact statement that looks at the impact of this project.

Similarly, placing a huge commercial outlet abutting a wetlands, in a floodplain, in a water supply watershed, makes the cure worse than the disease. It is not in the public welfare to raise the level of risk to our fragile water supply. It is not in the public safety to frivolously overburden our roadways because some developer thinks the area needs another Old Navy or Petco. Similar land uses exist in abundance in this area, and no fiscal impact statement has been presented which justifies this project as in the public welfare, as opposed to the private interest of a developer.

V. Zone l: Watershed Protection District

This project is located in Zone 1, which is “critical to the protection of surface and subsurface water supplies, and requires a high degree of protection from incompatible land uses.”

Placing one of the largest shopping centers in the history of Middletown in a WPD Zone 1—when shopping centers are not even a use by right—is a serious test of incompatibility. Not only is this use not “by right”, it is of a scale and intensity that exceeds most other existing shopping centers in town. The Board is under no requirement to find such a compatibility between a watershed protection area, and nearly 13 acres of asphalt and concrete. The petitioner could have selected land that was more hospitable to a shopping center, but they chose a Zone 1 of a WPD, and the town has the right to suggest that it is maintaining a ‘zero tolerance’ approach regarding risk to the water supply due to land uses that are neither a) ‘by right’ in nature, nor b) of a scale and intensity compatible with a sensitive water protection area.

Conclusion

The Board must find under section 903 that this project

1. Will not harm property values in the surrounding area

2. Is compatible with our Comprehensive Community Plan

3. Is inimical to the public goal of reducing congestion in the streets and avoiding pollution of public water supplies.

The findings of fact reached by the Board should be made up of credible and expert testimony, and not just statements submitted by firms under contract to the petitioner. There are many parts of the record in this case that are simply inadequate or missing;

1. An independent traffic impact statement

2. A fiscal impact, cost/benefit analysis

3. An air quality impact statement

4. A real estate appraisal of impact on surrounding values.

These kinds of independent reports are necessary for the Board to do justice to the requirements found in Section 903. The public’s welfare cannot be protected if we rely solely on petitioner-developed statements about impact on water, air, biodiversity, traffic, etc. Such statements do not protect the public health, safety and welfare of the residents of Middletown.

This proposal has only two problems: scale and location. It is the wrong size, and in the wrong place. As shown above, it is wholly incompatible with our Comprehensive Community Plan, and on those grounds alone could be denied.

Because this land use is not “by right”, but relies on a discretionary judgment on the part of the Board, the petitioner has no unalterable right to a special use permit. The petitioner has not presented the information necessary to make a compelling case for why this project should receive a special permit. This is not a use that can exist without a special use permit. Its location in a water protection district and a floodplain make it subject to scrutiny. The fact that the petitioner has gone to great lengths to suggest, for example, that his detention pond system is technically up to the task of protecting our fragile water supply, does not guarantee us that an “incident” won’t occur, or that human error will not cause a degradation of our water. We are not under any obligation to expose sensitive areas to large scale commercial development. None of use would be here today if this developer had proposed a reasonably scaled development, such as one could expect to find in the Town Center Overlay District. Saying “no” to this particular plan is not saying “no” to all commercial development on this site. What the Board would be saying is that development must recognize its surroundings, and consider the impact of its scale on the area.

To get lost in the details of “deep sump catch basins” and “luxury uptake” data is to miss the major point: this intensity of this project will add 4,500 car trips a day to an already congested traffic location, and increase the risk of stormwater runoff pollution to an already fragile watershed area.

Finally, the Community Plan discourages this kind of strip development in a flood prone area, and encourages Middletown to locate growth away from sensitive receptors. The Plan suggests this area be used for a linear park, not linear sprawl.

Rhode Island law requires that this proposal be consistent with our Community Plan. It fails that test, and I urge the Board to deny the special use permit, or at best, require the petitioner to pay for the studies called for above.

Thank you for your consideration.