Monday, March 29, 2010

New: Judicial Branch's Standing Order on Land Use Appeals

Last Thursday, March 25th, the Judicial Branch posted the new Standing Order on Land Use Appeals on its website. The standing order will take effect on May 1, 2010. This order applies appeals of agency actions from: planning commissions, zoning commissions, planning and zoning commissions, zoning boards of appeal, inland wetlands and watercourses agencies, aquifer protection agencies, historic district commissions, water pollution control agencies. It does not apply to affordable housing appeals brought pursuant to General Statutes Chapter 126a. It also does not cover appeals from state agencies pursuant to the Uniform Administrative Procedures Act, General Statutes § 4-183.

Each judicial district will create and maintain a land use appeals calendar which will be held monthly, presumably like other short calendars, though not necessarily, on a Monday. Within 30 to 60 days of the return date on a land use appeal, the appeal will appear on the judicial district's land use calendar. All counsel and pro se parties must appear in court on the date and time printed on the calendar.

Pro se parties, please note that the land use calendar, if it is handled like other short calendars, will not be physically printed and mailed to the counsel and pro se parties. You will need to use the docket number of the appeal sent to you by the clerk's office to look up your appeal and see if the land use calendar appears as an event in your case. You should start looking at the case detail on the judicial website regularly after about 25 days after the return date on your appeal.

Attendance at the first appearance of the appeal on the land use calendar is mandatory. The appeal will continue to appear on the calendar until the appeal is disposed of. Counsel and pro se parties will not need to appear at subsequent listings on the land use calendar unless they receive a notice from the clerk's office.

The business to be accomplished when appearing in court is the setting of a scheduling order in the appeal. A pretrial conference will be scheduled within 30 days. Pro se parties, at the conference the judge will determine from the presentations which are made in chambers and not on the record in the courtroom: whether the appeal is on a settlement track, whether any issues are be narrowed or eliminated, or whether the appeal will proceed as filed by the appellant. The effectiveness of the conference often turns on how hands-on the judge is who is conducting the conference. Of course, it is also imperative that counsel for the parties are fully aware of the positions of the parties from the proceedings before the agencies. If there is another application pending that would render the current appeal moot, this would be the occasion to seek a stay of the current appeal to allow the subsequent application sufficient time to be acted upon.

If there is neither a potential settlement nor a subsequent application on the horizon, the scheduling order will be set. Indeed, the scheduling order can be set taking those two possibilities into account. In any event, the order will establish a time for the agency's filing of the administrative record in court, the filing of briefs by the parties and the hearing on the appeal. The judicial branch in conjunction with the Connecticut Bar Association's Planning & Zoning Section (which includes other municipal programs including the inland wetlands agency actions) is developing a policy on the electronic filing of the record to be implemented in the future. Stay tuned for updates.

All motions or pleadings, such as motions for extensions of time, motions to expunge items from the record or supplement the record, motions to dismiss or motions to settle the appeal will be assigned to the land use calendar. The counsel and pro se parties are instructed to ignore short calendars on which any of these motions appear -- these motions/pleadings will be handled solely by the judge handling the land use calendar. In some judicial districts which are efficient in placing matters on the weekly short calendars, this will slow down the handling of an appeal. But, I'm thinking of one judicial district in particular, where a monthly calendar will represent a great improvement on the handling of a motion or the scheduling of a hearing before the judge in a land use appeal.

The benefit of a uniform policy is that counsel who appear in many courthouses don't have to remember which judicial district is the one that doesn't list wetlands appeals with other land use appeals (Hartford) or which districts don't have a land use calendar at all (Bridgeport, Middletown) or which district has a land use calendar but it is only convened annually (Waterbury). Just try to remember which procedure works best where. A uniform policy, for that matter a written policy, assists the lawyer who is handling a land use appeal for the first time, a lawyer who is handling a land use appeal in a given judicial district for the first time and every single pro se party every time.

The drawback of the policy is for those judicial districts which efficiently handled their land use appeals all along without the need for establishing and convening a monthly land use calendar. The Middletown judicial district comes to mind. Even in an appeal where the appellant papered the file, i.e., filed motion after motion, motion to correct the record, motion to take depositions, motion to supplement the record, motion to allow interrogatories, the court denied each one expeditiously without parties showing up to argue any of them. The only time counsel had to appear was to argue the appeal before the judge.

This policy requires everyone to show up for the establishment of a scheduling order -- even if a party has no objection and even if the parties agree to a routine order (30 days for the filing of the administrative record, 30 days for the appellant's brief and 30 days for the appellee's brief.) Apparently motions will be scheduled to be argued on the land use calendar. Most motions on the short calendar aren't subject to argument. I don't look forward to having to appear to argue whether a motion for extension should be granted, even if I have filed an objection to it.

As a land use attorney, I appreciate the structure that a land use calendar brings, especially to those judicial districts which have none for their land use appeals and especially when there are disputes between the parties on procedure or substance. But I'm also an environmental attorney. The carbon footprint of our practice should cause us to examine unnecessary trips to the courthouse.

In the land of steady habits, change comes slowly.

Thursday, March 25, 2010

Legislative proposal to increase protection of natural vegetation around wetlands and watercourses: Raised Bill No. 123

The Environment Committee voted out of committee, March 15th, on a 26 to 3 vote, with 2 members absent, a substitute bill for Raised Bill No. 123, An Act Concerning Preserving Natural Vegetation Near Wetlands and Watercourses. On March 8th the committee held a public hearing on the bill. The legislature proposed language which the environmental groups didn't comment on because they have been busy refining language of their own which they expected to be substituted for the language in Raised Bill No. 123. But many who weren't aware of that commented on the text as found on the General Assembly's website. As a result, reading the written comments to the public hearing is like watching boats passing in the night.

The legislature's version: The bill's focal point is the protection of natural vegetation from "destruction" within 100 feet of a wetlands or watercourse or within the upland review area [URA] where the URA is less than 100 feet. The bill defines natural vegetation as "naturally occurring shrubs, trees or other plants, but does not include lawns or manicured grass areas." Everyone agrees that definition includes invasive species. The bill further states that a wetlands agency shall allow the "removal" of natural vegetation if (1) the applicant demonstrates the removal not likely to impact or affect the physical characteristics of the wetlands or watercourse and (2) there is no feasible or prudent alternative to the removal. Evidently, one would have to make that showing to remove invasive species.

The exemption to this "natural vegetation" provision is for activities that are "ancillary to existing residential uses" such as "the construction of structures such as decks, outbuildings, fences or walkways."

However, the activities set forth "as of right," otherwise known as the exemptions under the wetlands act, are not exempt from this natural vegetation provision. Thus, farming activities and water company activities, exempt under General Statutes § 22a-40, must comply with the permitting process for the destruction of natural vegetation. This bill also tinkers with the farming exemption, in general, by including a reference to the statutory definition of farming contained in General Statutes § 1-1, but omitting the reference in the farming exemption to "harvesting of crops." No one addressed the reason or need for eliminating "harvesting of crops" from exempt activities. Is there one?

The environmental groups' version: This proposed language is appended to CFE's comments and is joined in by the Sierra Club, The Nature Conservancy, the Connecticut River Watershed Council and Rivers Alliance. The groups' version uses the same definition of "natural vegetation." As CFE explains, the groups' version " directs local inland wetland agencies to preserve vegetation on any unimproved lot in the first 100 feet around wetlands and watercourses unless the applicant can demonstrate that there would be no adverse impact to the wetland or watercourse." For improved lots the groups' version gives discretion to preserve/replant natural vegetation in the first 100 feet "to the extent practical."

Unlike the text of the Raised Bill, the groups' version continues in effect the existing statutory exemptions and affords those same activities to be exempt from the natural vegetation provision. Also, it strengthens the statutory exemptions. The groups' version inserts language explicitly extending the exemption to those activities that occur in the upland review area ("area around wetlands and watercourses").

The groups' version also includes a provision that the agency may charge a fee to cover the costs of the agency hiring experts. It spells out a mechanism for the agency to issue an estimate to the applicant. If any of the estimate remains unused, it is returned to the applicant. This language tracks the DEP language in the 2006 version of the Model Regulations. By providing the language in the statute, the environmental groups were intending to bypass the need for individual agencies to adopt such a regulation.

CFE's comments identify that the purpose of this bill is in "furthering the protection of Connecticut's water quality and mitigating the harms of flooding and erosion." The DEP Commissioner, Amey Marrella, testified that the law as currently written authorizes agencies to exercise their discretion on a case-by-case basis as circumstances dictate. DEP does not support a mandate that narrows the authority to allow removal of vegetation. DEP also opposes the erosion of the statutory exemptions, by requiring exempt activities to nonetheless comply with the mandate regarding removal of vegetation. DEP would support the bill if it eliminates the changes to the exemptions and the mandatory language be made permissive.

While the DEP commissioner testified that agencies already have the authority to regulate the removal of vegetation, in contrast the Connecticut Council of Municipalities testified that the bill would expand the jurisdiction of agencies without evidence of the need to do so. The Connecticut Marine Trades Association characterized the bill as granting "excessive authority" to wetlands agencies. The Home Builders Association of Connecticut believe the bill "unnecessarily expands the jurisdiction" of wetlands agencies.

The land use attorneys from Shipman and Goodwin submitted testimony supporting the Commissioner's proposition that wetlands agencies already are authorized to regulate the removal of vegetation. With a little bit of high school math and some practical knowledge they point out that a wetland the size of a pin generates 3/4 acre of area which would be under the mandate of no removal of vegetation unless the specified conditions are met. Do the math: area of a circle = pr2 (3.14 x 100 x 100 = 31,400 [1 acre = 43,560 square feet] or 72% of an acre.)

The legislature's Raised Bill threatens the exempt community's status and brought out strong opposition from the Connecticut Water Works Association, the Connecticut Professional Timber Producers Association, an entrepreneur in the forest product industry and the Connecticut Farm Bureau Association.

CACIWC (the CT Assn of Conservation and Inland Wetlands Commissions) wrote in support of the concept of protection of vegetated buffers but because there were different versions circulating among various stakeholders recommended that an advisory committee representing the varying interest groups review any language before the bill goes further.

What the Environment Committee did: The committee voted out of committee an amendment which makes the bill permissive instead of mandatory. By their action the legislators displeased: (1) the environmental groups who supported a different version of the bill, (2) those business interests opposing the bill, (3) the groups whose activities are covered by the statutory exemption but not in this bill, (4) CACIWC which wished an inclusive process and (5) the Commissioner of DEP who set out the three conditions under which she could support it.

Did the Environment Committee manage to alienate everyone at once? Astonishing. Perhaps this bill will go the way of many other bills during a short legislative session.

May it wither on the vine.

Sunday, March 7, 2010

Legislation to expedite permitting: Raised Bill No. 5208

Time is not on their side, Part II: The Regulated Community

In the previous bill we looked into, Raised Senate Bill No. 120 establishing legislative review of DEP guidance documents, time was not on the side of the DEP commissioner and the environmental community: review of guidance documents and promulgating such documents as regulations will delay the DEP from protecting the environment, so say the bill's opponents. Now it's the regulated community's turn.

The problem that the bill identifies is that it takes too darn long to get approvals for projects which generate new jobs. The solution proposed by Raised Bill No. 5208 is for the commissioner of the department of economic and community development to establish "teams" to expedite review of state permit applications that would create at least 100 jobs (or 50 jobs in an enterprise zone or brownfields). There is a list of projects not eligible to be expedited: projects for final disposal of solid waste, biomedical waste, or hazardous waste, for the production of electricity, for the extraction of natural resources, for the production of oil or for operating an oil, petroleum, natural gas or sewage pipeline. The team will include those from DECD, DEP, DOT, the regional planning agencies, and any towns that choose to participate. The DECD's sole criterion for setting up a team is the creation of 100 jobs (or in some cases, 50).

A town may seek to have the DECD establish a team for the creation of 10 jobs in town. In that case, the DECD is to ponder the wage and skill levels in vicinity, the project's potential to diversify and strengthen the area's economy, and capital investment involved. None of those factors, and for that matter no factor applies, when the DECD is looking at a project creating 100 jobs.

The significance of being an eligible project is that the team is that final agency action on all approvals is to occur within 90 days of the submission of a complete application. The team accomplishes this through a memorandum of understanding [MOU] which has the authority to rescind or modify existing law, such as, "the forms, fees, procedures or time limits for the review or processing of permit applications" for the agencies that are part of the MOU. The teams can not alter the procedures for federally delegated permits administered at the state level. The bill as proposed has a baffling provision. The DECD with some help from DEP and DOT "shall develop a standard form for each memorandum of understanding." So which is it? Is the DECD developing a standard format for provisions in the MOU or is each MOU just going to have the same caption headings with the substance unique to the specific projects? Do the proponents know?

Such a process represents quite a savings of time at the state level. Time can be saved at the local permitting approvals as well if the municipality, by way of a legislative resolution asks the DECD for a "team" for a project that will create as few as 10 jobs. At the state level, the DECD will convene the team and establish, for example, which DEP timeframes will be shortened. At the local level, the board of selectmen or the city council will pass a resolution asking the DEC to set up a team that could end up shortening the review time for the planning and zoning commission, the inland wetlands and watercourses agency, the water pollution control authority, the historic district commission, to name a few agencies that can be impacted.

The bill states the expediting of the permitting process does not alter the substantive provisions of the affected law. In theory that may be true, but if a wetlands agency has 30 days or 45 days -- with no possibility of extension, how likely is it that the substance of the permit will be unaffected? Will the fees paid by the applicant be increased so that the wetlands agency can afford to pay its consultants for expedited review? Notably it is not the wetlands agency, but the town legislative unit that decides the creation of the 10 jobs is the overriding factor to consider. Not likely that the board of selectmen or town council will consider the resource impacts to the wetlands when deciding whether to seek expedited permitting. And then there are the rights of the environmental intervenors under the Connecticut Environmental Protection Act. Will those rights be reduced to three minutes of public comment at a public hearing?

Perhaps this whole model will break down at the DECD level. DECD will have to do more with no additional staff. DECD has to staff these teams and hold a meeting within 14 days of determining a project's eligibility and developing MOUs that will have a project acted on within 90 days.

The public comments received at the February 25th public hearing before the Commerce Committee fell into expected camps, although the proponents were a bit tepid in their support. The Connecticut Business and Industry Association supported the concept, in two sentences of testimony. The Connecticut Development Authority, a quasi-public agency, was thankful that brownfields were included in the mix of projects. The Home Builders Association of Connecticut endorsed the bill -- if amended to include construction jobs created as jobs to be counted (which the bill as written explicitly excludes.) The Connecticut Conference of Municipalities (CCM) supported the bill, focusing on the delays in projects that need state agency approvals. No mention was made that municipal agencies could be fast-tracked as well without necessarily receiving the fees to support expedited review.

Three environmental groups opposed the process as too expensive (increased costs for more staff at DECD, DEP and DOT). Sierra Club supported increased resources at the state agencies to process applications more expeditiously; Environment Connecticut supported finding ways, not including this bill, to expedite approvals by meetings of the stakeholders; CFE noted the lack of public voice in the expediting process.

Joan McDonald, the Commissioner of Economic and Community Development, presented the most detailed comments. While expressing that she "fully supports any effort to expedite state and local approvals," she notes the bill "may overwhelm existing resources." She counters the notion of "teams" with the creation of a position in DECD of an ombudsman who would direct state and where applicable, muncipal agencies how to go about expediting their processes. The ombudsman would be paid by a user fee by the applicant.

Commissioner McDonald refers to "many states" having "similar approaches." Those states aren't named. Perhaps that is a good starting place: a review of what other states have done to expedite approvals and whether various stakeholders are satisfied with.

She makes a number of insightful points. The bill as written doesn't require the eligible projects to be compatible with the state's responsible growth strategies, consistent with the state plan for conservation and development or to have taken environmental justice issues into consideration.

But on balance, whether a "team" or an "ombudsman," to support this bill you will have to be comfortable with a czar in charge of the permitting process, because you won't have advance notice which statutes will be abrogated, modified, or set aside for a given economic development process. Jobs at any cost, anyone?