Tuesday, August 31, 2010

River Sound Development, LLC seeks further appeal

River Sound Development, LLC, has filed papers dated August 16th (within the appeal period) to have its appeal heard by the state Supreme Court. The Appellate Court decision was the subject of three blog entries in July. River Sound's proposal for a golf course and houses on approximately 1000 acres in Old Saybrook was denied by the Old Saybrook wetlands agency. River Sound is seeking permission (petition for certification) to have its appeal heard by the Connecticut Supreme Court, as there is no right to a direct appeal.

The Appellate Court in River Sound concluded that the Old Saybrook wetlands agency properly exercised jurisdiction over activities occurring outside the upland review area because a majority of the proposed activities are proposed with the review area. As River Sound rightly points out, previous Appellate Court precedent holds that a commission has no jurisdiction outside the wetland or watercourse resource unless the commission has adopted a regulation establishing an upland review area. Two Appellate Court decisions which are inconsistent with each other. River Sound calls it a "perfect opportunity" for the Supreme Court to resolve this important issue of jurisdiction.

Yes it is.

Buffers vs. Upland Review Areas: predictability or flexibility?

On Monday, the Connecticut Law Tribune published an editorial endorsing a legislative initiative to create a 100 foot mandatory no activity buffer zone from wetlands and watercourse boundaries that will amend the zoning statutes, not the wetlands statutes. The editorial focused on the legislative standstill that has arisen in the past few sessions with predominantly the homebuilders association in counterpoint to the environmentalists who sought such changes in the wetlands law. The proposed legislation was covered in a post earlier this year.

The editorial endorses a one-size-fits-all approach: that a mandatory 100 foot buffer is superior to "weak optional protection" afforded the existing upland review area in the wetlands statute. The editorial is honest enough to acknowledge that when the land contours move away from a wetland or watercourse perhaps a few feet of vegetation is sufficient to protect the wetland resource. Conversely, it acknowledges that in a steeply graded area 100 feet may be inadequate. So, this approach endorses the ease of predictability -- the buffer is 100 feet, regardless of the level of protection needed or afforded, over flexibility. Thus, one landowner, for the greater good of predictability, will leave vegetation intact or allow vegetation to reclaim a cleared area. The "quid" for this "quo" will be mandatory clustering. The landowner will be allowed the same number of units to be developed in a smaller area. The issue seems to have moved away from wetlands protection to a different "greater good," cluster development .

Do you want a paintbrush that covers a broad swath with uniformity and relative speed (no public hearings, garbled conditions or appeals based on lack of substantial evidence)? You will favor a mandatory buffer, even if you can't line up the swath with the protection of the resource.

Do you yearn to see the brush strokes articulate with precision the differences between resources and the creative conditions that can be crafted to find the perfect fit between public comment and a proposed project? Then the flexibility of the current regulatory scheme, which already allows an agency to protect vegetation around wetlands and watercourses will satisfy you.

It is refreshing to read an article where the words "buffer" and "upland review area" are used correctly. In Cornacchia v. Environmental Protection Commission, 109 Conn. App. 346, 357 (2008), the Appellate Court pointed out that the Darien wetlands agency referred to the area within 50 feet of the wetlands and watercourses, as "buffer," "setback area," "protected area," and "regulated area." The Court countered that whatever the commission calls it, the area "is not a protected or regulated area but rather an upland review area where certain activities may be regulated because of the activities' likely impact or effect on the nearby wetlands and watercourses."

I still encounter a tremendous variation in what commission members understand their authority is within the upland review area.
The learning curve is perhaps too slow.

Which brings me back to training of agency members. I will return to the topic of training soon.

Removal of Robert Fromer from the Windsor wetlands agency: continue to stay tuned

I reported in June on the action of the Town Council of Windsor passing a resolution, at the request of the Windsor wetlands agency, to remove Robert Fromer from the wetlands agency, so that he not finish up his remaining two years. The public hearing to which he is entitled under the town charter to contest the action, was originally scheduled for July. The hearing was delayed until August to afford Mr. Fromer the time he requested. The August hearing was scheduled for early August until a notice issue arose, at which point the hearing was canceled. The public hearing has been rescheduled for Wednesday, September 15th.