Outcome of lawsuit still uncertain

By Colleen Gundlach

The prospect of a new asphalt production facility in East Canaan has created controversy, pitting Ben Metcalf, whose colorful ads for driveway repair sprinkle the North Canaan landscape, against a group of concerned citizens and neighbors. Metcalf is currently suing the town of Canaan for turning away his land-use application and appealing a recent Planning and Zoning (P&Z) decision to prohibit warm asphalt production.

A brief review of the history that led up to last month’s P&Z hearing shows that in 2009, Salisbury resident Ben Metcalf purchased six acres of land on Allyndale Road in East Canaan from the M.F. Mulville Company, planning to operate a cold patch asphalt company on the site. The P&Z approved the B. Metcalf Paving cold patch operation as a pre-existing, non-conforming use of the property, as the land had already been in industrial use. 

In 2013, after several years of producing cold patch, Metcalf purchased an additional 26 acres from the Mulville property and requested that the P&Z include the additional land in the previously-issued pre-existing, non-conforming use permit. Three years later, the P&Z approved a special permit site plan “for the processing of earth materials and removal in an industrial zone,” with the stipulation that berms be added to the existing buffer around the property. At that time only cold patch asphalt was being produced. 

It was in April of 2018, when Metcalf began notifying adjoining property owners of his intention to begin warm asphalt production that opposition to the project began to take shape. 

In May of 2018, Metcalf submitted an application to the P&Z for approval of his warm asphalt plans. P&Z Chairman Steven Allyn, owner of Allyndale Limestone, refused to accept the application, citing that asphalt production was not listed in North Canaan’s zoning regulations as an approved land use. Metcalf has sued the town for that decision, saying that he was not given his right to due process.

Several neighbors in the area of Allyndale Road banded together at that point to raise public awareness of what they believe to be serious environmental issues with the building of such a plant in the area. Dolores Perotti, one of the organizers of Stop the Asphalt Plant (STAP), says that they have environmental concerns and feel strongly that the effect will be deleterious to the aquifer in East Canaan. Robin Markey, a next-door neighbor to the plant and cousin of Steven Allyn, agrees, saying “we should have been more proactive at the beginning and not let the project get this far.” They cite noise, air quality and water pollution concerns, and point to Public Act 98-216, which prohibits asphalt plants from being located within one-third of one mile of any hospital, nursing home, school, residential housing, watercourse, or critical environmental area. “Metcalf is less than a third of a mile from the Blackberry River,” says Perotti. “And we are worried about our aquifers. This is our home and we are not going anywhere.”

The group contacted the state DEEP last year with their concerns, and the agency made a surprise inspection of the cold patch facility. While finding that Metcalf needed to file some more applications for approval, the agency did not find any source of pollution at that time.

Metcalf disputes the claims of the STAP group, saying he holds his business up to the highest environmental standards. “I have produced cold patch at this site for 10 years and had a good relationship with Steve Allyn,” he says. “He knows that I am an environmentalist. Asphalt is here to stay,” Metcalf continues. “We need it for roads, parking lots and other projects. I want to produce it in the most environmentally sensitive way I can.”

For the cold patch operation, Metcalf uses an agricultural oil that is low in volatile organic compounds, and the asphalt is produced indoors. “Since the cold patch is hard, it cannot leak into the aquifer. There is nothing in the plan that impacts water.”

The proposed warm asphalt plant will be fired by propane or natural gas. Metcalf says if there is ever a warm asphalt leak, it would immediately harden, as it cools quickly. As for the noise question, he said, “you will hear traffic from Route 44 more than you will hear the plant operation.”  Markey disagrees. “I hear his trucks daily,” she says. “They are much louder than the Route 44 traffic.”

Metcalf says he has worked conscientiously on the plant’s design. The building will be 50 feet below the road level, with a berm around the entire area. He said that it is sited at the absolute farthest point from both neighboring homes. “I take the neighbors’ needs very seriously. If there is ever any unwarranted noise, the neighbors have my cell number and I handle it immediately.” 

On May 13, a public hearing was held to decide on STAP’s proposal to amend the town’s use tables to prohibit the manufacturing, production and storage of asphalt anywhere in town. After much discussion, and against the advice of ZEO Richelle Hodza and Town Attorney Randy DiBella, the commission went ahead and heard arguments. The P&Z then met in public meeting to decide on the STAP proposal. Again ZEO Hodza cautioned the board about taking action on the application as it stood, without final review by the town attorney. The board voted three to one to approve the motion not to allow asphalt production in town. Chairman Allyn abstained. Metcalf has filed an appeal.

At this point, Metcalf’s lawsuit based on the refusal of the P&Z to accept his first application is still in the hands of the court. STAP filed a motion to intervene, which was denied. Since the town failed to act on the original application within 65 days, the judge has the authority to approve or deny without any additional input from the town. 

Where it goes from here is anyone’s guess. Perotti and the STAP supporters vow to “keep the pressure on. We are fighting for our homes and our children.” Metcalf says, “I was never naïve enough to think there would be no opposition, but this waste of town funds on a vendetta is unconscionable.”