Berlin Considering 3-Month Development Moratorium

BERLIN – Berlin elected officials will vote on a moratorium on planned unit development (PUD) projects for the next three months after town elected officials, staff, and planning commission members concluded this week that the code is ambiguous and needs to be rewritten.

The Berlin Mayor and Council met with the Berlin Planning Commission and staff this week in a work session after consultant Tim Bourcier of Davis, Bowen and Friedel identified some PUD procedural issues in the town code.

“We thought we should bring these to your attention and see what to do from there,” said Bourcier at the work session.

A PUD adds or waives zoning conditions for a given project, such as increasing density or allowing mixed uses in a residential zone.

“That zone enhances what’s underneath,” Bourcier said. “The underlying zone still controls.”

Berlin has a handful of PUD projects, including Walnut Hill and Purnell Crossing and has received an application for a new PUD at the Davis-Taylor Farm project.

Approval of a PUD, which is similar to a zoning change, lies with the Berlin Planning Commission, and ultimately with staff, who under town code approves a project’s zoning certificate.

The Planning Commission votes to approve or reject a PUD, and the zoning inspector and superintendent of planning then signs off on it. The Mayor and Council is never involved in that decision.

“I’ve never seen a system like that before. It’s the oddest thing in the world to me. Usually, the staff makes a recommendation to the town council,” said Bourcier. In Berlin, however, “You guys never see it.”

The main issue, Bourcier said, is how PUDs are getting approved.

Traditionally, developers bring a concept plan to a planning commission and a request for a PUD, then come back with a site plan.

“You guys have that in your code, I’m just not sure they’re being followed the traditional way,” Bourcier said.

Pete Cosby, chair of the Planning Commission, thinks the code should be changed to have the Berlin Mayor and Council legislatively approve all PUDs.

The planning commission would still review PUDs, but make a recommendation to the council for the final decision. The council could overrule a negative recommendation from the planning commission.

“The code’s sloppy. It leads to different interpretations,” said Cosby, a lawyer by trade.

“It’s so vague and ambiguous it’s hard to follow procedure,” Bourcier said. “I think it should be changed.”

Council Vice President Gee Williams said a clear process is needed.

“We need to get our house in order,” William said. “We need to have an unambiguous and consistent process so governing bodies and developers know what to anticipate.”

Councilwoman Ellen Lang expressed concerns that changes were being proposed to accommodate the current PUD project waiting for consideration.

“If it was written specifically for one PUD, I don’t think it should be rewritten for one either,” Lang said.

Williams said that the overall PUD concepts get lost in the process and makes it difficult to enforce the important points. “Case-by-case situations should be on the small details, not the big,” said Williams.

Bourcier offered two local examples to consider in rewriting the code, Worcester County and Salisbury. Worcester County uses a very traditional overlay zone policy that lists districts and the uses allowed in each. “It’s very thorough in the specific uses,” he said.

In contrast, Salisbury creates a new zoning district for each project.

Williams said the town would be more interested in a standardized model.

“I’m not sure we hold the results of Salisbury in high esteem at all,” Williams said. “The results scare the hell out of us.”

With a consensus reached on revamping the code governing PUDs, the planning commission asked the council if it would consider a moratorium on new PUD applications until the code changes are complete.

“We call a moratorium, we got no pressure,” Cosby said. “Let’s do a moratorium and fix the code.”

The planning commission held a brief session immediately after the work session to ratify its request to the council for a moratorium on PUD applications for the next six months.

“The lawyers advise us the existing ordinance is ambiguous in interpretation and something should be done to fix it,” Cosby said.

The motion to make the request was unanimously approved. The council is expected to vote on the PUD moratorium at its Oct. 9 council session.

The code changes should be complete in three months.

Joe Moore, attorney for the Davis-Taylor Farm mixed residential and commercial project, expressed some uneasiness at the proposed changes.

“The purpose of planned unit development is to allow mixed uses. If you go with the traditional RPC in Worcester County, you do away with that,” Moore said.

Moore filed a PUD application for the project in late August. That application has not been acted on yet.

If the town eliminates mixed uses while the application is still pending, Moore said that would result in zoning denied by moratorium.

“We know you all are here because of our application,” Moore said. “I want the revision process to be fair. … If you’re going to put a moratorium on PUDs, then only one person in town is being affected.”

Williams said, “I think you’re being a little paranoid,” Williams said.

Moore replied, “I’ve been paranoid for two and a half years on this project.”