Between December 2011 and July 2012, Kobyluck Brothers LLC filed four appeals on decisions the Town of Waterford made in superior court, after the town rejected the company’s proposal to turn 28 Industrial Drive into a stone-crushing plant.
This month, Waterford argued its case for why the town’s rulings should stand. In a legal brief submitted on February 12th for all four cases, Waterford Town Attorney Rob Avena argues that Kobyluck’s reasons for the appeals are too vague and argued Kobyluck should have brought up its complaints during the hearing, instead of waiting for the appeals.
One of the reasons Kobyluck listed to overturn Waterford’s decision is that they allege Waterford Planning Director Tom Wagner told Kobyluck owner Matt Kobyluck, in a pre-application meeting, that he would never allow the proposal “in my town.” Avena argued the quote was taken out of context and said while Kobyluck has a right to a fair hearing, the company does not have the right to expect the town to agree with the proposal.
“Plaintiffs are entitled to fair treatment in the application process,” Avena wrote. “They are not entitled, as applicants, to have the town staff or the Commissions before whom they appear, agree with their positions.”
Further in his brief, Avena wrote that Kobyluck listed no specific examples of that bias playing out in the decision, but just that Wagner made that comment. Avena said that Kobyluck must demonstrate specific instances of where bias factored into his denial, and said his complaint was too vague to be considered.
“There is a presumption that administrative board members acting in an adjudicative capacity are not biased,” wrote Avena. “To overcome the presumption, the plaintiff must demonstrate actual bias, rather than mere potential bias, of the board members challenged, unless circumstances indicate a high probability of bias too high to be constitutionally tolerable.”
There is no announced schedule of when a judge will make a decision on any of the four suits. No new information can be submitted for the appeals, just briefs by both sides and a judge reviews the record.
Background
In 2010, Kobyluck Brothers submitted a request to turn 28 Industrial Drive into a stone-crushing plant. Many neighbors opposed the application and the company withdrew its application in November of that year.
In November of 2011, Kobyluck resubmitted its application. It was later denied by both the Conservation Commission and the Planning and Zoning Commission, with Kobyluck filing appeals to both decisions.
Also, a few months after Kobyluck submitted its application in 2011, the Planning and Zoning Commission made it illegal to do what Kobyluck was proposing. Because those regulations were passed after Kobyluck submitted the application, they did not apply to his proposal. Kobyluck has filed an appeal against that decision as well.
