Sunday, June 13, 2010

Stew Leonard's wetlands denial revisited

Stew Leonard is giving up his decade long battle to build his dairy store in Orange, as reported recently in the New Haven Register.

Early on in this blog I reported on the state Supreme Court decision reversing the wetlands agency's approval for Stew Leonard's proposal of a dairy and grocery store adjacent to the I-95 highway ramp in Orange. The proposal won zoning approval but had its wetlands approval thrown out based on the conditions in the approval. The Supreme Court decision in Finley v. Inland Wetlands Commission, 289 Conn. 12 (2008) the court found illegal the issuance of a permit with a condition requiring the submission of a revised sedimentation and erosion control plan that implements all state regulations. It went something like this: if the agency needed such a revision, it shouldn't have approved the application in the first place. My concern about the decision: What is the bright line determining a valid condition from an invalid one. How do agencies read this case and go forward?

This appeal was brought by environmental intervenors who are only entitled to raise wetlands issues. Well, when the citizens were quoted reacting to Stew Leonard's pronouncement that he was giving up the project in Orange, they didn't manage to articulate any wetlands concern, any environmental concern at all, for that matter. They thought the project would generate too much traffic and take up too much of the town services. Not exactly wetlands issues. In fact, those concerns didn't prevent the project from getting zoning approval.

This was, I believe, the first successful denial of an agency permit brought pursuant to the Connecticut Environmental Protection Act. Thirty-six years passed since CEPA was enacted and the Supreme Court reverses the permit because it contained a condition to revise the sedimentation and erosion control plans in accordance with the state guidance document which Stew Leonard's agreed to do. Eighteen months after the citizens' victory they don't even mention the only winning issue - wetlands. It's leaves me wondering about the value of CEPA in the twenty-first century.

Thanks again to Attorney Matt Berger of New London for pointing out the newspaper article about the Stew Leonard's proposal in Orange. He always keeps me on my toes!

Windsor wetlands agency seeks removal of fellow member

The Windsor wetlands agency is seeking the town council's removal of wetlands agency member Robert Fromer. According to an article in the Hartford Courant, the agency voted 4-1 (with Fromer dissenting) to request the town council action. In a letter to the town council the wetlands agency chairperson, Linnea Gilbert, characterized Fromer's behavior as "unprofessional and antagonistic" and seeks his removal due to his "antagonistic, condescending and unprofessional behavior and comments to applicants, fellow commissioners and town staff." Fromer is halfway through his 4 year term as an agency member. On June 7, 2010 the Windsor town council unanimously adopted a "resolution of intent" to remove Fromer from his post. As an interim measure, the council resolution suspends him pending the charter-mandated public hearing, which must be held within 30 days of June 7th.

Robert Fromer is a well-known plaintiff for appeals and suits brought when he lived in southeastern Connecticut.

It's been quite some time since the courts have looked at removal of a wetlands agency member. Thirty years ago the Connecticut Supreme Court upheld a trial ruling ordering the Board of Selectmen in Brookfield to reinstate Barbara Obeda to the wetlands agency after she was removed by the Board "for cause." In Obeda v. Board of Selectmen, 180 Conn. 521 (1980), based on the facts in that case, the state Supreme Court set the bar high for proving cause. Looking at the five grounds the town relied on, the Supreme Court dispensed with each of them: refusal to disqualify herself, discourtesy to other agency members, personality clash with other agency members, her attempt to secure the resignation of a senior agency member, her belief that the town engineer lacked expertise.

I've thought the Obeda case was a signal that towns and agencies shouldn't come running to the courts when members don't get along optimally. In Windsor, it is alleged that the town is having difficulty filling vacancies due to Fromer's conduct; two positions and two alternate positions are unfilled. It remains to be seen what facts will be put forth in the case for removal and for Fromer's defense.

Is there a point when rudeness and inability to get along are sufficient bases for removal "for cause"? Stay tuned.

Friday, June 11, 2010

Wetlands training: self-reliance instead of training workshops?

Anytime I engage folks in the discussion of training the question is almost always posed: why aren't more of the training materials available online? DEP is building up a library of resources on the DEP wetlands webpage. The materials distributed at the 2010 Segment II training are available by scrolling down the DEP wetlands webpage, in the text, not the links to the topics in the left column.

I clicked on the "presentations and handouts" and was interested to find a "presentation on pesticides." While working at DEP, I handled a lot of pesticide enforcement matters, devoting years to some big cases. I wasn't aware of the DEP pesticide folks' involvement in wetlands training before. I highly respect the DEP pesticides program staff and I know that Brad Robinson knows his stuff.

This post is not about what Brad put into the materials, but what members might take away. So turn to page 30 of 40 in the "presentation on pesticides." On the page are 2 photos, both of phragmites. One caption states: "No permit needed -- phragmites on roadside". The other caption states: "Chemical control requires permit -- phragmites in water". The text on that page states: "Even though the roadside area may be a wetland as defined by soil, the permit requirement is for application to standing water." Those are all of the words on that page.

So, a wetlands agency member reads this at home. Does "no permit" mean no wetlands permit? This is wetlands training, after all. I am confident that had that question arisen during training, Brad would have jumped on it and made it clear he was referring to the state DEP permit process for regulating the application of pesticides to the waters of the state. Certainly that's what the front page of the materials states. Will members figure out the difference between the DEP aquatic permit and the wetlands permit? They would, if they attended training. Someone reading the materials, interrupted by talking, texting or TV, could easily take the text on page 30 out of context and conclude no municipal wetlands permit is needed for land applications. Again, this is not about the written materials, this is about the environment in which the materials are used.

My conclusion is not to restrict what materials are available online, but to provide better methods of interactional training. I'm a greater believer in live training workshops. Then again I was a music major in college (voice) and an active participant in musical theater. Life is a cabaret, my friend.

But when there are five locations for the DEP training, inevitably there are areas of the state where it feels too far to travel to be trained. Can technology help us out? The Environment Section of the Connecticut Bar Association held its first meeting (I believe) where one of the presenters was not among us. Thanks to cutting-edge technology, a professor from the Vermont Law School appeared to us "live" and was able to interact with the other presenters and the audience. What appears too high-falutin' and remote in 2010 may become state of the art training in 2012.

And another word about pesticide applications. The materials stress that adverse effects from pesticide applications in water are rare. DEP knows the statistics better than I do. But I must happen to live on one of those rare streets. In 2005 I saw that signs had gone up around the pond in our neighborhood, indicating the aquatic use of a pesticide. I called Brad Robinson and told him the pesticide. He explained that the pesticide used was common to control vegetation in ponds and that it works by treating 1/2 the pond at a time allowing the fish to swim into the untreated portion of the pond. Because the commercial applicator posted a sign, I didn't think to ask Brad whether the DEP had issued a permit for it. Two days later I was walking around the pond again and was alarmed to see what I estimated were 80-90 dead fish in the pond. I made a formal complaint to the DEP pesticides program. The DEP fisheries staff investigated along with the pesticides program and established over 500 dead fish. The commercial applicator had neither a DEP aquatic pesticide permit nor a municipal wetlands permit. The pesticide indicated on the sign was not the pesticide used and the applicator violated the label requirements regarding the application of pesticide that was used.

Permits are important. And agency members understanding what permits are required is basic.

More training materials with more opportunities for interactional training are needed. And still to come in future posts, my thoughts on higher standards for wetlands agencies.

Thursday, June 10, 2010

DEP wetlands training video available on DEP website

I have received comments that folks are frustrated by the lack of training material available online. Good news for those of you wishing to view the DEP training video which covers introductory legal topics as part of the DEP training. It is available online on the DEP website. I spent too much time not finding it. I went to the DEP wetlands homepage and looked under "Training for wetlands agencies" and then under "Resources and References." After I had clicked on all of the links, I broke down and called Darcy Winther at DEP. She kindly pointed out that it is on the homepage itself in the middle of the text. The video can be viewed here.

You can now watch the training video in the privacy of your own home. You can be multi-tasking, watching the video on your laptop, ipad, or netbook, while watching a game on tv. You can simultaneously be texting, talking or washing the dishes (does anyone multi-task to do household chores?) And therein lies the problem. There is no quality control to the environment in which self-training can occur. As someone who helped DEP develop the legal training for wetlands agencies in 1990 and as a trainer throughout my tenure at the Attorney General's Office (2006) and to date through CACIWC and the CT Bar Association, I continue to believe that the most important portion of any training time is the Q & A period. It's immaterial to me whether Q & A is interspersed with the training or held at the end. But if the trainer doesn't have any feedback on how the participants are understanding the materials, then neither do the participants.

I'm all for use of the video to reinforce training. Especially since it covers the introductory concepts. Is it your first time on any kind of regulatory agency? You might need to hear more than once the kinds of conduct that are illegal as a commission member. I've heard Steve Tessitore, the DEP municipal liaison to wetlands agencies, state on numerous occasions, that members need to hear a topic 7 times before they can change how they act. If the video is available whenever a member has a question and if it answers the member's precise question, that's great. Then the video can be repetitions #2 through #7, speeding up the learning curve. The Q & A of a training session is an opportunity to ask any question without knowing the answer. The alternative can bring dire results: members take an action on someone's application that is simply wrong, because they didn't have an opportunity to ask someone how to proceed.

If there is a serious push to allow review of visual or printed materials online as a substitute for attendance at training courses, I think testing should become a component of the self-education process. How else would the agency member or DEP know whether the material was being absorbed? Steve Tessitore was quite adamant in opposing a testing system, noting how it would tax the DEP, etc.

Complement not substitute. The video is a useful adjunct in the ongoing process of becoming a trained wetlands agency member. It is not a stand-alone tool.

In the next post I'll highlight the problem of relying on written materials, by examining some of the material posted on the DEP website for training that occurred this spring.