Tuesday, March 15, 2011

Legislative proposals to extend length of wetlands permits and length of time to complete regulated activities

In keeping with Governor Malloy’s message that Connecticut is open for business, the Planning & Development Committee of the General Assembly on March 11th voted unanimously in favor of two legislative proposals that would lengthen the time within which approved regulated activities could be conducted. Raised Bill 859 extends the time for which certain wetlands permits (also site plan and subdivision approvals) are valid. Raised Bill 869 establishes a minimum of three years that a permit shall allow regulated activities to occur. This would eliminate the discretion that agencies currently have to limit permits to two years.

Raised Bill 859 proposes to amend a provision originally added to address the initial blows the recession wreaked on our construction industry. Permits may have a life of between 2 and 5 years, depending in part on the discretion of the municipal agency and in part on whether certain zoning approvals are also required. Section 22a-42a (g) was first enacted by the legislature in 2009. It allowed for the automatically lengthening of all wetlands permits issued between July 1, 2006 to July 1, 2009 to six years, with a maximum of 11 years, if a renewal is granted. Bill 859 enlarges the permits eligible for automatic lengthening -- those issued between July 1, 2006 through July 1, 2011. All of those permits are valid for 9 years from date of issue, and up to 14 years with a permit renewal. So, permits issued in June 2011 will be valid until 2020 and up to 2025 if permit renewal is sought (and granted.)

The sole written comment to this bill was The Home Builders Association of Connecticut which strongly endorses the bill. It cited the need to save the time and expense of seeking permit renewal. Its quibble was that a larger universe of permits should benefit from the automatically lengthening -- those permits issued since 2004, years before the recession occurred, through 2013. The Planning & Development Committee did not adopt that lengthier time period.

Raised Bill 869 addresses those agencies which require regulated activities to be conducted in a certain time period and requires that period to be a minimum of three years. There are a number of agencies in the state which routinely require all regulated activities, once commenced, to be completed in a 12-month period. I don’t know where the 12 month period came from. It’s not in the 2006 version of the DEP model regulations. For some agencies this is just a practice, for others it is codified in their municipal regulations. I’ve never understood the restriction of a 12 month period when the permit is valid for 2,3 or 5 years. What value is a 5 year permit if the 12 month from commencement period trumps the permit length? I get the reason to restrict certain activities to certain seasons or to certain weather conditions. But a 12 month period seems an end run around the statutory minimum length of permits.

The legislative fix to this unbased practice is to continue to allow agencies to establish a specific time period in which to conduct regulated activities but to require a minimum of 3 years for that to occur. I did hear a land use attorney speak out against this, not at the public hearing, but at the Connecticut Bar Association's Land Use seminar held last weekend for municipal land use agency members and their staff. The gist of his sentiment was: why should a simple driveway crossing be allowed to take up to three years? Perhaps one-size permit length doesn't fit all situations. But that is the consequence of the arbitrariness of agencies which routinely impose a 12-month period for all regulated activities -- legislative pushback.

Again, the sole entity/person submitting written comments at the public hearing, The Home Builders Association of Connecticut endorsed that proposal and urged this further amendment: “The specific time period within which any regulated activity shall be conducted shall commence when the regulated activity is physically started on the site.” This is to address, what the Home Builders describe as the timing problems, with projects needing other municipal land use or state agency approvals. Again, the Planning & Development Committee did not adopt the Home Builders' suggestion.

Raised Bills 859 and 869 are poised for further legislative action. If Raised Bill 869 is enacted, the statutory language will need to be corrected to eliminate the possibility of 2 year permit which this bill mandates.

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