tag:blogger.com,1999:blog-13725435551198027252024-02-20T07:32:32.997-05:00Connecticut Wetlands LawTo Comment on a posting, please click the word "comments" below the post.Janet P. Brookshttp://www.blogger.com/profile/02115855738959544965noreply@blogger.comBlogger81125tag:blogger.com,1999:blog-1372543555119802725.post-86616746992202388702016-07-07T21:37:00.000-04:002016-07-07T21:37:51.009-04:00Farm roads exempt: Indian Spring Land Company v. Inland Wetlands and Watercourses Agency, part II
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<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: "Book Antiqua","serif";">I’m still
coming off of the grammar- and punctuation-high from the Supreme Court’s
decision in <i style="mso-bidi-font-style: normal;">Indian Spring Land Company v.
Inland Wetlands and Watercourses Agency</i>, which was officially released on
July 5, 2016. The Supreme Court clearly states three times in the decision that
the plain language of section 22a-40 (a) (1) provides that road construction
directly related to a farming operation is excluded from municipal wetlands
oversight.<o:p></o:p></span></div>
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<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: "Book Antiqua","serif";">It is clear
that Indian Spring Land Company is free to construct its bridge (the footings
of which will not be located in wetlands) and to put gravel fill in several
vernal pools in order to construct its road – all without a wetlands permit.<o:p></o:p></span></div>
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<span style="font-family: "Book Antiqua","serif";">What is the
take-away message for future farmers who will be constructing roads in wetlands
and watercourses?<span style="mso-spacerun: yes;"> </span>Alas, that’s not so
clear.<span style="mso-spacerun: yes;"> </span>At the end of the decision the
Supreme Court explicitly <i style="mso-bidi-font-style: normal;">affirms</i> its
decision in <i style="mso-bidi-font-style: normal;">Taylor v. Conservation
Commission</i>, 302 Conn. 60 (2011), stating “section 22a-40 (a) (1) does not
permit the filling of wetlands for the purpose of road construction, regardless
of the road’s relation to the farming operation, because the statute clearly
provides for the regulation of activities that require wetlands to be
filled.”<span style="mso-spacerun: yes;"> </span>Then, it narrowed its holding
in the <i style="mso-bidi-font-style: normal;">Indian Spring Land Company </i>case:<o:p></o:p></span></div>
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<span style="font-family: "Book Antiqua","serif";">“</span><span style="mso-bidi-font-family: Arial;"><span style="font-family: Arial;">In conclusion, the plain language of section
22a-40 (a) (1) provides that road construction directly related to a farming
operation is excluded from the regulatory oversight of municipal wetlands
agencies, <b style="mso-bidi-font-weight: normal;">unless the manner of that
construction implicates some other matter within the scope of that oversight,
as in <i style="mso-bidi-font-style: normal;">Taylor</i>.</b><span style="mso-spacerun: yes;"> </span>Accordingly, the agency had no jurisdiction
to attach special conditions to the plaintiff’s gravel access road into the
northeast compartment, as the road was to be constructed solely for the purpose
of transporting equipment onto the property to complete forestry work.<span style="mso-spacerun: yes;"> </span>We therefore conclude that the trial court
improperly that the trial court improperly <span style="mso-spacerun: yes;"> </span>determined that the agency had jurisdiction
over the plaintiff’s access road and improperly rendered judgment dismissing
the plaintiff’s appeal</span></span><span style="font-family: "Book Antiqua","serif";">.”
(Emphasis added.)<o:p></o:p></span></div>
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<span style="font-family: "Book Antiqua","serif";">It’s time
to pull out the <i style="mso-bidi-font-style: normal;">Taylor</i> decision and
compare apples to apples, or in this case, gravel road to gravel road. Two of
the three roads proposed in <i style="mso-bidi-font-style: normal;">Taylor</i> as
“necessary for vehicle/tractor access to the central crop of Highbush
Blueberry” and as “necessary for vehicle/tractor access to the nursery crop
production” are located in wetlands.<span style="mso-spacerun: yes;"> </span><i style="mso-bidi-font-style: normal;">Taylor</i>, 302 Conn. 60, 62-63 (2011).<span style="mso-spacerun: yes;"> </span>The <i style="mso-bidi-font-style: normal;">Taylor</i>
farm roads will be constructed with gravel. Taylor, 302 Conn. 60, 66 n.8
(2011).<span style="mso-spacerun: yes;"> </span>The <i style="mso-bidi-font-style: normal;">Indian Spring Land Company </i>road will be constructed with gravel and
will fill “several vernal pools.”<span style="mso-spacerun: yes;"> </span>In <i style="mso-bidi-font-style: normal;">Taylor</i> the gravel road will be
constructed and fill wetlands and in <i style="mso-bidi-font-style: normal;">Indian
Spring Land Company</i> the gravel road will be constructed and fill a
watercourse.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
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<i style="mso-bidi-font-style: normal;"><span style="font-family: "Book Antiqua","serif";">What exactly is the difference in
the manner of construction between the Taylor scenario and the Indian Spring
Land Company one? </span></i><span style="font-family: "Book Antiqua","serif";"><span style="mso-spacerun: yes;"> </span><i style="mso-bidi-font-style: normal;">The
Supreme Court did not identify one.<o:p></o:p></i></span></div>
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<span style="font-family: "Book Antiqua","serif";">My
currently Lyme-addled brain cannot see a difference in “manner of
construction.”<span style="mso-spacerun: yes;"> </span>Gravel fill to gravel
fill.<span style="mso-spacerun: yes;"> </span>If gravel fill was subject to
wetlands agency jurisdiction in <i style="mso-bidi-font-style: normal;">Taylor</i>
why isn’t that same gravel fill in <i style="mso-bidi-font-style: normal;">Indian
Spring Land Company</i> subject to agency jurisdiction?<span style="mso-spacerun: yes;"> </span>The Supreme Court explicitly stated there is
a difference in the manner of construction.<span style="mso-spacerun: yes;">
</span>But there’s no "there" there.<span style="mso-spacerun: yes;"> </span>The
manner of construction is the same: gravel is used to construct a road.<o:p></o:p></span></div>
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<span style="font-family: "Book Antiqua","serif";">The Supreme
Court could have examined a different phrase in the farming exemption which
differentiates between filling of wetlands and filling of watercourses with
continual flow.<span style="mso-spacerun: yes;"> </span>That is, the exemption
does not allow within the exemption filling of wetlands or watercourses with
continual flow. Thus, it would seem that filling of watercourses that are not
of continual flow could fall within the exemption. If the only resources to be
filled with gravel in <i style="mso-bidi-font-style: normal;">Indian Spring Land
Company</i> are vernal pools, perhaps then the gravel fill would fall within
the exemption. However, there are too many unknown facts: are the vernal pools
surrounded by wetlands?<span style="mso-spacerun: yes;"> </span>Do the vernal
pools have continual flow?<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
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<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<i style="mso-bidi-font-style: normal;"><span style="font-family: "Book Antiqua","serif";">Evidently the parties did not make
those arguments and the Supreme Court did not rule on that basis.<o:p></o:p></span></i></div>
<span style="font-family: "Book Antiqua","serif"; font-size: 12pt; line-height: 115%; mso-ansi-language: EN-US; mso-bidi-font-family: "Times New Roman"; mso-bidi-font-size: 11.0pt; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin;">What’s
an agency member to do when faced with a farm road proposal directly related to
the farming operation?<span style="mso-spacerun: yes;"> </span>Those who believe
the proposal before the agency is similar to <i style="mso-bidi-font-style: normal;">Taylor </i>will rely on that case and require the farmer to get a
permit.<span style="mso-spacerun: yes;"> </span>Those who believe the proposal
is similar to <i style="mso-bidi-font-style: normal;">Indian Spring Land Company</i>
will rely on that case and find the proposed construction exempt.<span style="mso-spacerun: yes;"> </span>And both sides will be right . . . at least
until the next Supreme Court decision is issued which we can hope will straighten
out whether gravel is gravel is gravel</span>Janet P. Brookshttp://www.blogger.com/profile/02115855738959544965noreply@blogger.com0tag:blogger.com,1999:blog-1372543555119802725.post-52915885919419566982016-07-02T10:38:00.001-04:002016-07-02T10:38:25.791-04:00Sentence structure and punctuation gain their 15 minutes of fame in recent Supreme Court decision
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<div style="margin: 0in 0in 10pt;">
(begin listening to John Philip Sousa’s <i style="mso-bidi-font-style: normal;">Stars and Stripes Forever, </i>click <a href="https://www.youtube.com/watch?v=-mRn9chmRAY">here</a>) <span style="mso-spacerun: yes;"> </span> </div>
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On this holiday weekend I will roll out a few posts on the
Connecticut Supreme Court’s recent decision on the farming exemption in the
wetlands act.<span style="mso-spacerun: yes;"> </span>The <a href="http://www.jud.ct.gov/external/supapp/Cases/AROcr/CR322/322CR65.pdf">advance sheets</a> were
released this week and the official decision will be issued July 5, 2016. </div>
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<div style="margin: 0in 0in 10pt;">
Farmers <i style="mso-bidi-font-style: normal;">and grammarians</i>
will be waving their flags high in support of <i style="mso-bidi-font-style: normal;">Indian Spring Land Company v. Inland Wetlands and Watercourses Agency</i>.<span style="mso-spacerun: yes;"> </span>(As the official copy has not yet been issued
the citation for the case will not be available until July 5, 2016.)<span style="mso-spacerun: yes;"> </span>In the first paragraph of its decision the
Supreme Court tackled the difficult second sentence of the agricultural
exemption and held: “road construction directly related to farming operations
is permitted as of right under the Inland Wetlands and Watercourses Act . . .
and, therefore, that the agency did not have jurisdiction to regulate the
construction of the plaintiff’s access road.”<span style="mso-spacerun: yes;">
</span>Clear and concise.</div>
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You may recall the farming exemption in C.G.S. § 22a-40 (a) begins:</div>
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(a): The following operations and uses shall be permitted in
wetlands and watercourses, as of right: (1) Grazing, farming, nurseries,
gardening and harvesting of crops and farm ponds of three acres or less
essential to the farming operation . . . <b style="mso-bidi-font-weight: normal;">The
provisions of this subdivision shall not be construed to road construction or
the erection of buildings not directly related to the farming operation</b>,
relocation of watercourses with continual flow, filling or reclamation of
wetlands or watercourses with continual flow, clear cutting of timber except
for the expansion of agricultural crop land, the mining of top soil, peat,
sand, gravel of similar material from wetlands or watercourses for the purposes
of sale.</div>
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Ah, if “<b style="mso-bidi-font-weight: normal;">road
construction or the erection of buildings not directly related to the farming
operation</b>”<b style="mso-bidi-font-weight: normal;"> </b>does not fall within
the exemption, exactly what <i style="mso-bidi-font-style: normal;">does</i> fall
within in it?<span style="mso-spacerun: yes;"> </span>The agency argued that the
phrase “<b style="mso-bidi-font-weight: normal;">not directly related to the
farming operation” </b>only modified erection of buildings.<span style="mso-spacerun: yes;"> </span>The Supreme Court definitively disagreed: “the
plain language of the text of § 22a-40 (a) (1), as evinced by the legislature’s
sentence structure and use of punctuation, makes it clear that road
construction directly related to farming operations is exempt from the
regulatory oversight of municipal wetlands agencies.”<span style="mso-spacerun: yes;"> </span>And then it supported its decision citing the
United States Supreme Court on sentence structure and the D. C. Circuit Court
of Appeals on commas.</div>
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<div style="margin: 0in 0in 10pt;">
During the oral argument Justice Zarella took the lead on
sentence structure and comma questions.<span style="mso-spacerun: yes;">
</span>He appeared (to me) to be sitting on the edge of his seat peppering the
town counsel with question after question about the use of “or” and the lack of
a comma.<span style="mso-spacerun: yes;"> </span>I could scarcely sit still and
remain poker face in the audience.<span style="mso-spacerun: yes;"> </span>In
the previous road construction case which came before the Supreme Court, <i style="mso-bidi-font-style: normal;">Taylor v. Conservation Commission, </i>302
Conn. 60 (2011), I made these same sentence structure and comma comments on
behalf of the Connecticut Farm Bureau.<span style="mso-spacerun: yes;">
</span>Alas, the Supreme Court in <i style="mso-bidi-font-style: normal;">Taylor</i>
favored a Gertrude Stein approach: filling is filling is filling and requires a
permit.</div>
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<div style="margin: 0in 0in 10pt;">
But the commas were soaring through the Supreme Court
courtroom during the <i style="mso-bidi-font-style: normal;">Indian Spring Land
Company </i>argument.<span style="mso-spacerun: yes;"> </span>I stared hard at
the ceiling mural to stay calm during the questioning.<span style="mso-spacerun: yes;"> I gazed at</span> men bearing torches.<span style="mso-spacerun: yes;"> </span>I later learned that in Albert Herter’s
ceiling mural the torches represent the “Light of Education gained from the
Book of Knowledge and Experience.” Yes!</div>
<br />
<div style="margin: 0in 0in 10pt;">
Do you think I am mocking the reliance on sentence structure
and punctuation?<span style="mso-spacerun: yes;"> </span>I am not.<span style="mso-spacerun: yes;"> </span>I spent my undergraduate years doing close readings
of Roman poetry and writing papers where we had to mean what we say and say
what we mean.</div>
<br />
<div style="margin: 0in 0in 10pt;">
And in closing, before the piccolos are blowing their brains
out at the end of “Stars and Stripes Forever,” what remained, from my
perspective, was to determine if the Supreme Court would be implicitly or
explicitly overruling the <i style="mso-bidi-font-style: normal;">Taylor</i> decision.<span style="mso-spacerun: yes;"> </span>In a baffling “none-of-the-above” approach,
the Supreme Court explicitly affirmed the <i style="mso-bidi-font-style: normal;">Taylor</i>
decision. A close consideration of the facts in <i style="mso-bidi-font-style: normal;">Taylor</i> and <i style="mso-bidi-font-style: normal;">Indian Spring Land
Company</i> leads only to a lot of head-scratching which we can do together in the
next post.</div>
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<div style="margin: 0in 0in 10pt;">
<i style="mso-bidi-font-style: normal;">Many thanks to the always-resourceful
and helpful CT State law librarians, one of whom helped me locate the
information on the ceiling mural in the Supreme Court courtroom in <a href="https://jud.ct.gov/Publications/sc030.pdf">Visitor’s Guide</a>: The Connecticut Supreme Court.</i></div>
Janet P. Brookshttp://www.blogger.com/profile/02115855738959544965noreply@blogger.com0tag:blogger.com,1999:blog-1372543555119802725.post-81865707690776768092016-02-23T22:00:00.000-05:002016-02-23T22:00:35.851-05:00Do not go gentle into that DEEP good night: Raised Bill #141: Part V – Etc.
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<div style="margin: 0in 0in 10pt;">
<br /></div>
<div style="margin: 0in 0in 10pt;">
<b style="mso-bidi-font-weight: normal;"><span style="font-family: "Cambria","serif"; mso-ascii-theme-font: major-latin; mso-hansi-theme-font: major-latin;">And the rest . . .</span></b></div>
<div style="margin: 0in 0in 10pt;">
<br /></div>
<div style="margin: 0in 0in 10pt;">
<span style="font-family: "Cambria","serif"; mso-ascii-theme-font: major-latin; mso-hansi-theme-font: major-latin;">DEEP proposes to add a soil type,
“hydric,” to the statutory list that has been in effect for four decades. Over
the weekend I emailed five soil scientists who have each been active for
decades in the state.<span style="mso-spacerun: yes;"> </span>I asked: what is
the problem and is this the appropriate solution?<span style="mso-spacerun: yes;"> </span>No one had heard anything about this proposed
change or knew why it was offered.<span style="mso-spacerun: yes;"> </span>I
contacted the president of the Connecticut Association of Wetlands Scientists
(CAWS): they hadn’t been contacted.<span style="mso-spacerun: yes;"> </span>One
of the soil scientists I contacted reached out to the Soil Science Society of
Southern New England (SSS SNE), the organization that certifies soil
scientists.<span style="mso-spacerun: yes;"> </span>They knew nothing about
this.<span style="mso-spacerun: yes;"> </span>The Connecticut Association of
Conservation and Inland Wetlands Commissions (CACIWC) knew nothing of
this.<span style="mso-spacerun: yes;"> </span>CACIWC holds an annual meeting,
issues a quarterly newsletter and holds monthly board meetings. DEEP could have
used any of those avenues to communicate with those mostly closely affected by
soil type changes. DEEP didn’t reach out to any stakeholder prior to proposing
this bill.<span style="mso-spacerun: yes;"> </span></span></div>
<div style="margin: 0in 0in 10pt;">
<br /></div>
<div style="margin: 0in 0in 10pt;">
<b style="mso-bidi-font-weight: normal;"><span style="font-family: "Cambria","serif"; mso-ascii-theme-font: major-latin; mso-hansi-theme-font: major-latin;">In 2016 DEEP proposes to add a new soil type
without communicating to anyone affected by this change while simultaneously
seeking to removal its own specific supervisory authorities in the wetlands
laws.<span style="mso-spacerun: yes;"> </span>What’s wrong with this
picture?<span style="mso-spacerun: yes;"> </span></span></b></div>
<div style="margin: 0in 0in 10pt;">
<br /></div>
<div style="margin: 0in 0in 10pt;">
<span style="font-family: "Cambria","serif"; mso-ascii-theme-font: major-latin; mso-hansi-theme-font: major-latin;">Enough for me not to have an
opinion on whether it is appropriate or needed to add hydric soils to the
jurisdiction of wetlands commission until all stakeholders have had a chance to
consider the purpose and value of the proposal.</span></div>
<div style="margin: 0in 0in 10pt;">
<br /></div>
<div style="margin: 0in 0in 10pt;">
<span style="font-family: "Cambria","serif"; mso-ascii-theme-font: major-latin; mso-hansi-theme-font: major-latin;">DEEP wants to synchronize public
notice between state notices on wetlands applications for state agencies and
other DEEP permit programs – who could raise a concern?<span style="mso-spacerun: yes;"> </span>(Section 2 of Raised Bill #141.)<span style="mso-spacerun: yes;"> </span>DEEP thinks that “renew” is a better word
than “extend” in matters where the town agent is taking action – fine.<span style="mso-spacerun: yes;"> </span>(Section 4 of Raised Bill #141 addressing CGS
§ 22a-42a (c) (2)).</span></div>
<div style="margin: 0in 0in 10pt;">
<br /></div>
<div style="margin: 0in 0in 10pt;">
<b style="mso-bidi-font-weight: normal;"><span style="font-family: "Cambria","serif"; mso-ascii-theme-font: major-latin; mso-hansi-theme-font: major-latin;">To recap</span></b><span style="font-family: "Cambria","serif"; mso-ascii-theme-font: major-latin; mso-hansi-theme-font: major-latin;">:</span></div>
<div style="margin: 0in 0in 10pt;">
<br /></div>
<div style="margin: 0in 0in 10pt;">
<b style="mso-bidi-font-weight: normal;"><span style="font-family: "Cambria","serif"; mso-ascii-theme-font: major-latin; mso-hansi-theme-font: major-latin;">No</span></b><span style="font-family: "Cambria","serif"; mso-ascii-theme-font: major-latin; mso-hansi-theme-font: major-latin;"> to
dismantling the oversight and enforcement functions that DEEP is assigned. <i style="mso-bidi-font-style: normal;">Part II.</i></span></div>
<div style="margin: 0in 0in 10pt;">
<br /></div>
<div style="margin: 0in 0in 10pt;">
<b style="mso-bidi-font-weight: normal;"><span style="font-family: "Cambria","serif"; mso-ascii-theme-font: major-latin; mso-hansi-theme-font: major-latin;">Not really</span></b><span style="font-family: "Cambria","serif"; mso-ascii-theme-font: major-latin; mso-hansi-theme-font: major-latin;">
to suing municipalities directly in lieu of DEEP oversight, but if it is going
to be enacted, put the reference into the already existing court enforcement
provision of CGS § 22a-44 (b). <i style="mso-bidi-font-style: normal;">Part III.</i></span></div>
<div style="margin: 0in 0in 10pt;">
<br /></div>
<div style="margin: 0in 0in 10pt;">
<b style="mso-bidi-font-weight: normal;"><span style="font-family: "Cambria","serif"; mso-ascii-theme-font: major-latin; mso-hansi-theme-font: major-latin;">No</span></b><span style="font-family: "Cambria","serif"; mso-ascii-theme-font: major-latin; mso-hansi-theme-font: major-latin;"> to
eliminating the procedural requirements for amendments to wetlands maps. <i style="mso-bidi-font-style: normal;">Part IV.</i></span></div>
<div style="margin: 0in 0in 10pt;">
<br /></div>
<div style="margin: 0in 0in 10pt;">
<b style="mso-bidi-font-weight: normal;"><span style="font-family: "Cambria","serif"; mso-ascii-theme-font: major-latin; mso-hansi-theme-font: major-latin;">No</span></b><span style="font-family: "Cambria","serif"; mso-ascii-theme-font: major-latin; mso-hansi-theme-font: major-latin;"> to adding
hydric soils to the definition of wetlands soils, <b style="mso-bidi-font-weight: normal;">until all stakeholders have been consulted. </b><i style="mso-bidi-font-style: normal;">Part V.</i></span></div>
<div style="margin: 0in 0in 10pt;">
<br /></div>
<div style="margin: 0in 0in 10pt;">
<b style="mso-bidi-font-weight: normal;">No objection</b> to changes
in notice for permits processed by DEEP and an isolated word change. <i style="mso-bidi-font-style: normal;">Part V.</i> </div>
<div style="margin: 0in 0in 10pt;">
<br /></div>
Janet P. Brookshttp://www.blogger.com/profile/02115855738959544965noreply@blogger.com0tag:blogger.com,1999:blog-1372543555119802725.post-58118651103940706232016-02-23T17:10:00.001-05:002016-02-23T17:10:31.606-05:00Do not go gentle into that DEEP good night: Raised Bill #141: Part IV - Wetlands Maps
<br />
<div style="margin: 0in 0in 10pt;">
<b style="mso-bidi-font-weight: normal;"><span style="font-family: "Cambria","serif"; line-height: 115%; mso-ascii-theme-font: major-latin; mso-bidi-font-size: 12.0pt; mso-hansi-theme-font: major-latin;">Amendments
to wetlands boundary maps: variations on a (statutory) theme </span></b></div>
<br />
<div style="margin: 0in 0in 10pt;">
<span style="font-family: "Cambria","serif"; line-height: 115%; mso-ascii-theme-font: major-latin; mso-bidi-font-size: 12.0pt; mso-hansi-theme-font: major-latin;">DEEP proposes in section three of Raised Bill #141, click <a href="https://www.cga.ct.gov/2016/TOB/s/pdf/2016SB-00141-R00-SB.pdf">here</a> to
read the bill or go to: <a href="https://www.cga.ct.gov/2016/TOB/s/pdf/2016SB-00141-R00-SB.pdf"><span style="color: blue; mso-bidi-font-family: Arial;">https://www.cga.ct.gov/2016/TOB/s/pdf/2016SB-00141-R00-SB.pdf</span></a></span><span style="color: #29303b; font-family: "Cambria","serif"; line-height: 115%; mso-ascii-theme-font: major-latin; mso-bidi-font-family: Arial; mso-bidi-font-size: 12.0pt; mso-hansi-theme-font: major-latin;">, <span style="mso-spacerun: yes;"> </span>to eliminate all
of the procedure currently associated with map amendments, including:
conducting a public hearing in certain timeframes, posting a copy of the
amendments in the town clerk’s office for public perusal, stating at a meeting
the reasons for the change(s), providing a copy of the changes to DEEP.</span></div>
<br />
<div style="margin: 0in 0in 10pt;">
<span style="color: #29303b; font-family: "Cambria","serif"; line-height: 115%; mso-ascii-theme-font: major-latin; mso-bidi-font-family: Arial; mso-bidi-font-size: 12.0pt; mso-hansi-theme-font: major-latin;">I suppose it depends on
how you define the problem with maps to determine whether this proposal solves
it or makes it worse.</span></div>
<br />
<div style="margin: 0in 0in 10pt;">
<span style="color: #29303b; font-family: "Cambria","serif"; line-height: 115%; mso-ascii-theme-font: major-latin; mso-bidi-font-family: Arial; mso-bidi-font-size: 12.0pt; mso-hansi-theme-font: major-latin;">What is the purpose of
the municipal wetland map?<span style="mso-spacerun: yes;"> </span>For commission
members it is so they will know where the resources within their purview are
located.<span style="mso-spacerun: yes;"> </span>For land-owners wishing to
develop their property it is so they can know how to plan their construction.
For the rest of the community it is to know what areas come within the scrutiny
of the commission.<span style="mso-spacerun: yes;"> </span></span></div>
<br />
<div style="margin: 0in 0in 10pt;">
<span style="color: #29303b; font-family: "Cambria","serif"; line-height: 115%; mso-ascii-theme-font: major-latin; mso-bidi-font-family: Arial; mso-bidi-font-size: 12.0pt; mso-hansi-theme-font: major-latin;">There are town wetlands commissions
that follow the statutory procedural requirements for map amendments and their
citizens are well-served with notice, opportunity to be heard and with reasons
stated on the record for those changes.<span style="mso-spacerun: yes;">
</span>To those towns, I say: go forth and multiply!<span style="mso-spacerun: yes;"> </span></span></div>
<br />
<div style="margin: 0in 0in 10pt;">
<span style="color: #29303b; font-family: "Cambria","serif"; line-height: 115%; mso-ascii-theme-font: major-latin; mso-bidi-font-family: Arial; mso-bidi-font-size: 12.0pt; mso-hansi-theme-font: major-latin;">And then there are the
variations on the theme:<span style="mso-spacerun: yes;"> </span>towns which don’t
go through the official map amendment process and merely attach a soils map
(performed by a certified soil scientist) to an application for a permit and
never change the official map.<span style="mso-spacerun: yes;"> </span>I have
seen some towns do this ostensibly because of the cost of producing the
oversized map sheets.<span style="mso-spacerun: yes;"> </span>Some just got in
the habit of letting the wetlands application morph into map amendment.<span style="mso-spacerun: yes;"> </span>The unofficial, informal way seems so
user-friendly and helpful, until . . .</span></div>
<br />
<div style="margin: 0in 0in 10pt;">
<u><span style="color: #29303b; font-family: "Cambria","serif"; line-height: 115%; mso-ascii-theme-font: major-latin; mso-bidi-font-family: Arial; mso-bidi-font-size: 12.0pt; mso-hansi-theme-font: major-latin;">One</span></u><span style="color: #29303b; font-family: "Cambria","serif"; line-height: 115%; mso-ascii-theme-font: major-latin; mso-bidi-font-family: Arial; mso-bidi-font-size: 12.0pt; mso-hansi-theme-font: major-latin;"> <u>example</u>:<span style="mso-spacerun: yes;">
</span>Abutters to land which is being clear-cut call me for assistance to
determine if this is a wetlands violation.<span style="mso-spacerun: yes;">
</span>The abutters go to town hall and ask for a copy of the official wetlands
maps of the area which they purchase.<span style="mso-spacerun: yes;"> </span>It
appears the clear-cutting is occurring on wetlands.<span style="mso-spacerun: yes;"> </span>I speak to the agent for the municipal
wetlands commission. He is a respected, experienced certified soil scientist
himself.<span style="mso-spacerun: yes;"> </span>He explains that a more
accurate and recent soils map was produced in 1988 for a residential subdivision
application that was denied.<span style="mso-spacerun: yes;"> </span>The
official map wasn’t amended, the subdivision application never was built – but somehow
the soils map lived on, in some people’s memory, but is not provided when the
official wetlands map is requested, because, of course, it isn’t the official
wetlands map.<span style="mso-spacerun: yes;"> </span>Twenty years later,
another certified and experienced soil scientist examines the property and
contacts the town agent.<span style="mso-spacerun: yes;"> </span>They walk the
property and agree in the field that there aren’t wetlands soils in a certain
area.<span style="mso-spacerun: yes;"> </span>The soil scientist writes a letter
to the agent to confirm this.<span style="mso-spacerun: yes;"> </span>As a
result no application for a permit need be filed because the soil scientists in
the field agreed the area contains no wetlands.</span></div>
<br />
<div style="margin: 0in 0in 10pt;">
<b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;"><span style="color: #29303b; font-family: "Cambria","serif"; line-height: 115%; mso-ascii-theme-font: major-latin; mso-bidi-font-family: Arial; mso-bidi-font-size: 12.0pt; mso-hansi-theme-font: major-latin;">In this example, the most recent map
amendment is not even a map, it is a letter stating the agreement between one
soil scientist and the town agent that the soils map from 1988 no longer
reflects current conditions.<span style="mso-spacerun: yes;"> </span>The town
commission had no input or role in adopting what the soil scientists agreed to
out in the field.</span></i></b></div>
<br />
<div style="margin: 0in 0in 10pt;">
<span style="color: #29303b; font-family: "Cambria","serif"; line-height: 115%; mso-ascii-theme-font: major-latin; mso-bidi-font-family: Arial; mso-bidi-font-size: 12.0pt; mso-hansi-theme-font: major-latin;">Back to my earlier
statement – <b style="mso-bidi-font-weight: normal;">What is the problem with map
amendments?</b><span style="mso-spacerun: yes;"> </span>To me the problem is when
soil maps attached to applications are used in place of the official map
amendment process.<span style="mso-spacerun: yes;"> </span>The lack of formality
translates into a lack of transparency which means there is not a common
understanding of where the wetlands are located.</span></div>
<br />
<div style="margin: 0in 0in 10pt;">
<b style="mso-bidi-font-weight: normal;"><span style="color: #29303b; font-family: "Cambria","serif"; line-height: 115%; mso-ascii-theme-font: major-latin; mso-bidi-font-family: Arial; mso-bidi-font-size: 12.0pt; mso-hansi-theme-font: major-latin;">Viewed through that lens, I do not see the DEEP proposal
as a solution</span></b><span style="color: #29303b; font-family: "Cambria","serif"; line-height: 115%; mso-ascii-theme-font: major-latin; mso-bidi-font-family: Arial; mso-bidi-font-size: 12.0pt; mso-hansi-theme-font: major-latin;">.<span style="mso-spacerun: yes;"> </span>Section 3 of Raised Bill #141 relaxes the
official amendment process and doesn’t address the informal, unofficial, "extra-legal" process
currently taking place in some towns.</span></div>
<br />
<div style="margin: 0in 0in 10pt;">
<span style="color: #29303b; font-family: "Cambria","serif"; line-height: 115%; mso-ascii-theme-font: major-latin; mso-bidi-font-family: Arial; mso-bidi-font-size: 12.0pt; mso-hansi-theme-font: major-latin;">To those who complain
that it’s too cumbersome to hold two public hearings, one on the map amendment
and one on the application for a wetlands application, I say: Process them both simultaneously -- hold a joint
public hearing!</span></div>
<br />
<div style="margin: 0in 0in 10pt;">
<span style="color: #29303b; font-family: "Cambria","serif"; line-height: 115%; mso-ascii-theme-font: major-latin; mso-bidi-font-family: Arial; mso-bidi-font-size: 12.0pt; mso-hansi-theme-font: major-latin;">To those who complain of
the cost of amending the official wetlands maps, I say: This is 2016.<span style="mso-spacerun: yes;"> </span>Soil scientists are creating digital
maps.<span style="mso-spacerun: yes;"> </span>Receive maps in digital
format.<span style="mso-spacerun: yes;"> </span>The towns should maintain the
maps digitally.</span></div>
<br />
<div style="margin: 0in 0in 10pt;">
<span style="color: #29303b; font-family: "Cambria","serif"; line-height: 115%; mso-ascii-theme-font: major-latin; mso-bidi-font-family: Arial; mso-bidi-font-size: 12.0pt; mso-hansi-theme-font: major-latin;">If there are still
problems with the implementation of the formal map amendment process that lead
towns to work around, i.e., deviate from the official map amendment process,
form a task force of stakeholders to come up with a solution.<span style="mso-spacerun: yes;"> </span>Full transparency, ease of access to official
maps.<span style="mso-spacerun: yes;"> </span>Surely, this can be solved.</span></div>
Janet P. Brookshttp://www.blogger.com/profile/02115855738959544965noreply@blogger.com0tag:blogger.com,1999:blog-1372543555119802725.post-50527587467216922042016-02-22T15:43:00.000-05:002016-02-22T15:43:11.651-05:00Do not go gentle into that DEEP good night: Raised Bill #141: Part III: Sue your town!
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<div style="margin: 0in 0in 10pt;">
<span style="font-family: "Cambria","serif"; mso-ascii-theme-font: major-latin; mso-hansi-theme-font: major-latin;">DEEP isn’t just trying to go out
the back door and leave the wetlands act to the towns to deal with.<span style="mso-spacerun: yes;"> </span>No, it is balancing bowing out with creating
the right for citizens to sue their towns in court.<span style="mso-spacerun: yes;"> </span>See section 5 of Raised Bill 141. <span style="mso-spacerun: yes;"> </span>Click here to read the bill or go to </span><span style="color: black; font-family: "Arial","sans-serif"; font-size: 10pt; line-height: 115%;"><a href="https://www.cga.ct.gov/2016/TOB/s/pdf/2016SB-00141-R00-SB.pdf"><span style="color: blue;">https://www.cga.ct.gov/2016/TOB/s/pdf/2016SB-00141-R00-SB.pdf</span></a></span><span style="color: #29303b; font-family: "Arial","sans-serif";">.<span style="mso-spacerun: yes;"> </span></span><span style="color: #29303b; font-family: "Cambria","serif"; mso-ascii-theme-font: major-latin; mso-bidi-font-family: Arial; mso-hansi-theme-font: major-latin;">Before DEEP turns out the lights, it’s going to open the
door to the courthouse . . . for others to enter.<span style="mso-spacerun: yes;"> </span>That prosecutorial discretion that I wrote of
in the last post is also enjoyed by towns regarding enforcement of their land
use and wetlands regulations.<span style="mso-spacerun: yes;"> </span>DEEP
proposes to curtail <i style="mso-bidi-font-style: normal;">the towns’ </i>prosecutorial
discretion.</span></div>
<br />
<div style="margin: 0in 0in 10pt;">
<b style="mso-bidi-font-weight: normal;"><span style="font-family: "Cambria","serif"; mso-ascii-theme-font: major-latin; mso-hansi-theme-font: major-latin;">Sue your town!</span></b></div>
<br />
<div style="margin: 0in 0in 10pt;">
<span style="color: #29303b; font-family: "Cambria","serif"; mso-ascii-theme-font: major-latin; mso-bidi-font-family: Arial; mso-hansi-theme-font: major-latin;">DEEP’s proposal in lieu of statewide leadership and supervision
is to wait for the town mistakes to pile up, “failure to perform [municipal]
duties,” and have individual citizens sue their towns in court. Those citizens
may be: applicants whose applications were not timely processed or landowners
who find themselves with sediment in wetlands and watercourses on their own
property from somebody else’s project where the commission has failed to
require remediation.<span style="mso-spacerun: yes;"> </span>Anybody who can
identify a town’s failure to perform its duty under the wetlands act can file a
lawsuit for equitable relief, i.e., court orders that the town do something.</span></div>
<br />
<div style="margin: 0in 0in 10pt;">
<span style="color: #29303b; font-family: "Cambria","serif"; mso-ascii-theme-font: major-latin; mso-bidi-font-family: Arial; mso-hansi-theme-font: major-latin;">Instead of oversight by a state agency which could require
systemic change for commissions who consistently fail to carry out the wetlands
law, DEEP is supporting a piecemeal lawsuit-by-lawsuit approach to wetlands
enforcement in the state.<span style="mso-spacerun: yes;"> </span>Unless the
DEEP-proposed provision is moved to the currently existing enforcement
provisions in the law, it’s not even clear citizens who take on that burden can
seek their litigation costs back from the town.</span></div>
<br />
<div style="margin: 0in 0in 10pt;">
<span style="color: #29303b; font-family: "Cambria","serif"; mso-ascii-theme-font: major-latin; mso-bidi-font-family: Arial; mso-hansi-theme-font: major-latin;">There currently are provisions in the wetlands law pursuant to CGS
§ 22a-44 (b) where anyone can bring a suit against the actor violating the
wetlands law.<span style="mso-spacerun: yes;"> </span>And in those lawsuits they
can ask the court for reimbursement of attorney’s fees, the cost of instituting
the lawsuit, the cost of experts, etc. <span style="mso-spacerun: yes;"> </span>and
for the imposition of civil penalties. <span style="mso-spacerun: yes;"> </span></span></div>
<br />
<div style="margin: 0in 0in 10pt;">
<span style="color: #29303b; font-family: "Cambria","serif"; mso-ascii-theme-font: major-latin; mso-bidi-font-family: Arial; mso-hansi-theme-font: major-latin;">The difference with DEEP’s proposal is that the right to sue a
town is in § 22a-42 (h), separate from the other court enforcement provisions
in § 22a-44 (b).<span style="mso-spacerun: yes;"> </span>It really should be in
the same statutory section so that the right to apply for attorney’s fees and
other substantial costs applies to suits against towns. </span></div>
<br />
<div style="margin: 0in 0in 10pt;">
<span style="color: #29303b; font-family: "Cambria","serif"; mso-ascii-theme-font: major-latin; mso-bidi-font-family: Arial; mso-hansi-theme-font: major-latin;">I bring those enforcement actions under § 22a-44 (b) currently.<span style="mso-spacerun: yes;"> </span><i style="mso-bidi-font-style: normal;">Even if
this bill is enacted, I would not bring a suit solely against the town for lack
of enforcement.</i> I would want the court to impose the relief directly to the
person or entity who caused the environmental harm, not order the commission to
impose remediation against a third party.</span></div>
<br />
<div style="margin: 0in 0in 10pt;">
<span style="color: #29303b; font-family: "Cambria","serif"; mso-ascii-theme-font: major-latin; mso-bidi-font-family: Arial; mso-hansi-theme-font: major-latin;">DEEP proposes a specific alternative for those hapless
applicants in towns where the commission doesn’t act in a timely fashion –
bring an appeal to court of the commission’s failure to timely act.<span style="mso-spacerun: yes;"> </span>That’s another fine example of the cure being
worse than the disease.<span style="mso-spacerun: yes;"> </span>Perhaps DEEP is
unfamiliar with the court system.<span style="mso-spacerun: yes;"> </span></span></div>
<br />
<div style="margin: 0in 0in 10pt;">
<u><span style="color: #29303b; font-family: "Cambria","serif"; mso-ascii-theme-font: major-latin; mso-bidi-font-family: Arial; mso-hansi-theme-font: major-latin;">Worst case scenario</span></u><span style="color: #29303b; font-family: "Cambria","serif"; mso-ascii-theme-font: major-latin; mso-bidi-font-family: Arial; mso-hansi-theme-font: major-latin;">: the applicant’s lawyer drafts the appeal ($$), has a
marshal serve the appeal on the town and DEEP (about $100), pays a filing fee with
the court ($350), waits for the matter to appear on a calendar, agrees with the
town attorney on what documents are part of the administrative record, briefs
the matter, has oral argument, awaits a court decision.<span style="mso-spacerun: yes;"> </span>Many thousands of dollars and many months,
maybe over a year later, the court sustains the applicant’s appeal: the town
commission missed the deadline. <span style="mso-spacerun: yes;"> </span></span></div>
<br />
<div style="margin: 0in 0in 10pt;">
<u><span style="color: #29303b; font-family: "Cambria","serif"; mso-ascii-theme-font: major-latin; mso-bidi-font-family: Arial; mso-hansi-theme-font: major-latin;">Medium case scenario</span></u><span style="color: #29303b; font-family: "Cambria","serif"; mso-ascii-theme-font: major-latin; mso-bidi-font-family: Arial; mso-hansi-theme-font: major-latin;">: the applicant’s lawyer drafts an appeal ($$), has a
marshal serve the appeal on the town and DEEP (about $100), pays a filing fee with
the court ($350) and while awaiting the next steps in court, negotiates with
the town to complete the untimely application.</span></div>
<br />
<div style="margin: 0in 0in 10pt;">
<span style="color: #29303b; font-family: "Cambria","serif"; mso-ascii-theme-font: major-latin; mso-bidi-font-family: Arial; mso-hansi-theme-font: major-latin;">In each scenario the applicant pays for the commission’s
untimely action with more time lost and money expended.</span></div>
<br />
<div style="margin: 0in 0in 10pt;">
<span style="color: #29303b; font-family: "Cambria","serif"; mso-ascii-theme-font: major-latin; mso-bidi-font-family: Arial; mso-hansi-theme-font: major-latin;">Is this meaningful relief to the applicant?<span style="mso-spacerun: yes;"> </span>If the applicant is going to lose time to a
wetlands commission, why should it also have to lose more money?</span></div>
<br />
<div style="margin: 0in 0in 10pt;">
<b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;"><span style="color: #29303b; font-family: "Cambria","serif"; mso-ascii-theme-font: major-latin; mso-bidi-font-family: Arial; mso-hansi-theme-font: major-latin;">To
those of you who want more from your wetlands commission, DEEP is willing to
give you the shirt off of your town’s back.<span style="mso-spacerun: yes;">
</span>How is piecemeal litigation suing your town going to work out for those
of you harmed by untimely town action or lack of town enforcement?<span style="mso-spacerun: yes;"> </span></span></i></b></div>
<br />
<div style="margin: 0in 0in 10pt;">
<b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;"><span style="color: #29303b; font-family: "Cambria","serif"; mso-ascii-theme-font: major-latin; mso-bidi-font-family: Arial; mso-hansi-theme-font: major-latin;">How
is it going to work out for you, CCM?</span></i></b></div>
Janet P. Brookshttp://www.blogger.com/profile/02115855738959544965noreply@blogger.com0tag:blogger.com,1999:blog-1372543555119802725.post-40475550643050210232016-02-22T06:59:00.000-05:002016-02-22T06:59:47.977-05:00Do not go gentle into that DEEP good night: Raised Bill #141: Part II
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<div style="margin: 0in 0in 10pt;">
<strong>The dismantling of the state oversight of municipal wetlands
law implementation</strong>.</div>
<br />
<div style="margin: 0in 0in 10pt;">
In this post I will focus on what DEEP proposes NOT to do
and its willingness to give the shirt off – well, we’ll get to that in another
post.<span style="mso-spacerun: yes;"> </span>To begin, the first listed duty of
the Commissioner in the statutes is to “exercise general supervision of the
administration and enforcement of sections 22a-36 to 22a-45, inclusive.”<span style="mso-spacerun: yes;"> </span>Connecticut General Statutes (CGS) § 22a-39
(a).<span style="mso-spacerun: yes;"> </span>If DEEP has its way with this
raised bill, <span style="mso-spacerun: yes;"> </span>“general” supervision is
all that will be left, since its specific authorities will have been voluntarily
handed back to the legislature.</div>
<br />
<div style="margin: 0in 0in 10pt;">
I don’t know how DEEP intends to exercise general
supervision, but here is how they specifically intend not to do it:</div>
<br />
<div style="margin: 0in 0in 10pt;">
1) eliminate DEEP authority to issue orders pursuant to §
22a-6 (unilateral orders) and § 22a-7 (cease and desist orders) of the general
statutes where the municipality has failed to enforce its regulations or where,
as currently established in CGS § 22a-44 (a).<span style="mso-spacerun: yes;">
</span>See section 7 of Raised Bill #141.</div>
<br />
<div style="margin: 0in 0in 10pt;">
2) eliminate DEEP authority to revoke the authority of a
municipal wetlands commission which has “consistently failed to perform its
duties under” the wetlands act, as currently established in CGS § 22a-42d.<span style="mso-spacerun: yes;"> </span>See section 9 of Raised Bill #141.</div>
<br />
<div style="margin: 0in 0in 10pt;">
3) eliminate DEEP authority to review and act on municipal
applications where the agency or its agent failed to act within mandated
timeframes, as currently established in CGS § 22a-42a (c) (1).<span style="mso-spacerun: yes;"> </span>See section 4 of Raised Bill #141.</div>
<br />
<div style="margin: 0in 0in 10pt;">
The current statutory scheme envisions DEEP as the backstop
to deviant, outlier municipal action.<span style="mso-spacerun: yes;">
</span>Where the town wetlands commission fails to enforce its own regulations,
the citizens of that town won’t be harmed because DEEP can step in and issue
the needed orders.<span style="mso-spacerun: yes;"> </span>If that wetlands
commission “consistently” fails to do its job, DEEP can remove the authority of
the town to regulate its own wetlands and watercourses.<span style="mso-spacerun: yes;"> </span>I’ve seen a handful of examples where
DEP/DEEP stepped up and issued orders. They generally involved large, complicated
sites where DEEP’s expertise could match the challenges the sites posed.</div>
<br />
<div style="margin: 0in 0in 10pt;">
I was involved in the first instance that DEP began action
to revoke a town’s authority in the late 1980s.<span style="mso-spacerun: yes;">
</span>I had represented the DEP’s interest in a municipal wetland appeal
brought to superior court. <span style="mso-spacerun: yes;"> </span>I recall
submitting a brief to court that the list of what the commission did wrong was
so long it would be easier to list what it had done right.<span style="mso-spacerun: yes;"> </span>This was a commission where the applications
were kept at the chairman’s place of business.<span style="mso-spacerun: yes;">
</span>To see the “public documents” you had to make an appointment during work
hours to examine the application.<span style="mso-spacerun: yes;"> </span>It
went downhill from there.<span style="mso-spacerun: yes;"> </span>The matter was
resolved through education and modification of commission procedure.<span style="mso-spacerun: yes;"> </span>That is a perfect example of how DEEP can play
a very meaningful role in supervising municipal implementation of the wetlands
law.</div>
<br />
<div style="margin: 0in 0in 10pt;">
Both of these tools are seldom implemented.<span style="mso-spacerun: yes;"> </span>The deterrent effect of these tools, however,
is immeasurable.<span style="mso-spacerun: yes;"> </span>It is always the
Commissioner of DEEP’s discretion when to use these extraordinary tools.<span style="mso-spacerun: yes;"> </span>And that discretion is not second-guessed by
the courts.<span style="mso-spacerun: yes;"> </span>When citizens have sued
DEP/DEEP for failure to enforce environmental laws, the Attorney General’s
Office has successfully defended DEEP.<span style="mso-spacerun: yes;">
</span>Federal and state courts have deferred to DEEP’s “prosecutorial
discretion” not to pursue enforcement.</div>
<br />
<div style="margin: 0in 0in 10pt;">
<b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;">If DEEP can choose to enforce (or not enforce) based on its staff and
budget (or lack of them), why is a permanent dismantling of the state
supervision of municipal implementation necessary or warranted?</i></b></div>
<br />
<div style="margin: 0in 0in 10pt;">
As for the third issue.<span style="mso-spacerun: yes;">
</span>I’ve always felt that the cure was worse than the disease.<span style="mso-spacerun: yes;"> </span>You think that the town takes too long to
process your application?<span style="mso-spacerun: yes;"> </span>Just wait
until you remove the application from the town and file it with DEEP where
there are no there are no time limits.<span style="mso-spacerun: yes;">
</span>No tears shed over this give-back.<span style="mso-spacerun: yes;">
</span>Although, I do recall that the Bridgewater wetlands commission did refer
an application to (then) DEP to process an application because the applicant
had a suit pending in federal and/or state court against the commission and its
individual commission members for action on a previous application.<span style="mso-spacerun: yes;"> </span>That was a perfect solution.<span style="mso-spacerun: yes;"> </span>The transfer to DEP eliminated legal claims
of bias, etc.<span style="mso-spacerun: yes;"> </span>I guess DEEP is well past
looking for perfect solutions.</div>
<br />
<div style="margin: 0in 0in 10pt;">
The next entry will be on DEEP’s proposed solution to the
gap left by eliminating DEEP oversight.</div>
<br />
<div style="margin: 0in 0in 10pt;">
</div>
<br />
<div style="margin: 0in 0in 10pt;">
</div>
Janet P. Brookshttp://www.blogger.com/profile/02115855738959544965noreply@blogger.com0tag:blogger.com,1999:blog-1372543555119802725.post-18964759498793425292016-02-21T16:24:00.000-05:002016-02-21T16:24:15.592-05:00Do not go gentle into that DEEP good night: Raised Bill #141: Part I
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<div style="margin: 0in 0in 10pt;">
I joined the Attorney General’s Office in October 1987 and
surfed the wave that brought the Commissioner of DEP into the world of superior
court appeals of municipal wetlands agency decisions with the major 1987 amendments
to the wetlands act.<span style="mso-spacerun: yes;"> </span>I helped write the
model regulations at the beginning (late 1980s) and for the most recent edition
in 2006.<span style="mso-spacerun: yes;"> </span>I represented the Commissioner’s
interest of uniform development of the state wetlands act in about 200 wetlands
appeals over my 18+ years in the Attorney General’s Office.<span style="mso-spacerun: yes;"> </span>And so, it is with such melancholic regret
that I write about <i style="mso-bidi-font-style: normal;"><u>DEEP</u></i>’s
proposed bill to remove DEEP authority to enforce the wetlands act in some of
its last remaining supervisory roles.</div>
<br />
<div style="margin: 0in 0in 10pt;">
We certainly know that DEEP has had to do more and more with
less and less – and that was before the budgetary crisis that became apparent
in 2015 and is ongoing.<span style="mso-spacerun: yes;"> </span>DEEP proposes to
make it official (doing less) by Raised Bill #141.</div>
<br />
<div style="margin: 0in 0in 10pt;">
The raised bill can be found <a href="https://www.cga.ct.gov/2016/TOB/s/pdf/2016SB-00141-R00-SB.pdf">here</a> or by pasting in: <span style="color: black; font-family: "Arial","sans-serif"; font-size: 10pt; line-height: 115%;"><a href="https://www.cga.ct.gov/2016/TOB/s/pdf/2016SB-00141-R00-SB.pdf"><span style="color: blue;">https://www.cga.ct.gov/2016/TOB/s/pdf/2016SB-00141-R00-SB.pdf</span></a></span><span style="font-family: "Arial","sans-serif"; line-height: 115%; mso-bidi-font-size: 12.0pt;">. </span><span style="line-height: 115%; mso-bidi-font-family: "Times New Roman"; mso-bidi-font-size: 12.0pt;">The
Environment Committee will hold a public hearing on the bill (and 14 other
bills) Wednesday, February 23, 2016 beginning at noon.</span></div>
<br />
<div style="margin: 0in 0in 10pt;">
<span style="line-height: 115%; mso-bidi-font-family: "Times New Roman"; mso-bidi-font-size: 12.0pt;">In the next few posts I will break the
bill into the ghastly (removing DEEP authority), the quizzical (what did they
mean by that?) and the syntactical (innocuous substitution of words).</span></div>
<br />
<div style="margin: 0in 0in 10pt;">
<span style="mso-bidi-font-family: "Times New Roman";"> </span></div>
Janet P. Brookshttp://www.blogger.com/profile/02115855738959544965noreply@blogger.com0tag:blogger.com,1999:blog-1372543555119802725.post-83610673407048770382014-03-10T16:50:00.000-04:002014-03-10T16:50:59.256-04:00This is not a call for a return to the stocks of 1650*
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: "Cambria","serif"; font-size: 12pt; line-height: 115%;"> Our survey of municipal wetlands regulations is 95%
complete.<span style="mso-spacerun: yes;"> </span>My intern and I didn’t find an
effective way to reach eight towns.<span style="mso-spacerun: yes;"> </span>If
we reach those towns, we would revise the 2013 survey and replace it with a
2014 one.<span style="mso-spacerun: yes;"> </span>If anyone is a member of the
wetlands agency for any of the following towns, I would sure like to hear from
you:<o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: "Cambria","serif"; font-size: 12pt; line-height: 115%;"> <em>Bozrah, Canaan, Colebrook, Hartland, Marlborough, Stratford,
Wolcott<o:p></o:p></em></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: "Cambria","serif"; font-size: 12pt; line-height: 115%;">Contact me at </span><span style="font-size: 12pt; line-height: 115%;"><a href="mailto:jb@attorneyjanetbrooks.com"><span style="font-family: "Cambria","serif";"><span style="color: blue;">jb@attorneyjanetbrooks.com</span></span></a></span><span style="font-family: "Cambria","serif"; font-size: 12pt; line-height: 115%;">.<span style="mso-spacerun: yes;"> </span>100% response, how cool would that be?<o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: "Cambria","serif"; font-size: 12pt; line-height: 115%;">Next entry – the color yellow: the authority to regulate
outside established upland review areas.<o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: "Cambria","serif"; font-size: 12pt; line-height: 115%;">* but here they are – unused: click <a href="http://www.waymarking.com/waymarks/WMHPRR_Stocks_Hartford_CT">here<span style="mso-spacerun: yes;"> </span></a><o:p></o:p></span></div>
Janet P. Brookshttp://www.blogger.com/profile/02115855738959544965noreply@blogger.com0tag:blogger.com,1999:blog-1372543555119802725.post-69236452723153719152014-03-08T18:11:00.000-05:002014-03-08T18:11:13.167-05:00Seeking municipal wetlands regulations
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: "Cambria","serif";"> I decided to
keep it simple.<span style="mso-spacerun: yes;"> </span>I started examining the
definition of “regulated activity” in the regulations of a few towns.<span style="mso-spacerun: yes;"> </span>I wanted to compare the actual wording of
regulations and I wanted to get it done in three months – so that I could
present my findings at a workshop at the CACIWC annual meeting in November
2013.<span style="mso-spacerun: yes;"> </span>I was finding regulations easily
online through each town’s website – at least for the towns I started with. <span style="mso-spacerun: yes;"> </span>After reading the excerpted regulations, I <span style="mso-spacerun: yes;"> </span>paraphrased their content.<span style="mso-spacerun: yes;"> </span>Not a good technique.<span style="mso-spacerun: yes;"> </span>So, I retraced my trail and created files of
the actual verbatim text of regulations.<span style="mso-spacerun: yes;">
</span>Then I discovered that certain regulations weren’t there anymore or at
least I couldn’t find them (Danbury) or the link was broken (Brookfield). <span style="mso-spacerun: yes;"> </span>Too late for me, the second time around I also
started compiling the links to all of the regulations as I found them.<span style="mso-spacerun: yes;"> </span></span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: "Cambria","serif";"> Looking up the
regulations for 169 towns was made a great deal easier by the “towns and cities
webpage” on ct.gov.<span style="mso-spacerun: yes;"> </span>That page contains an
alphabetical list of Connecticut towns.<span style="mso-spacerun: yes;">
</span>When you click on a town name, you are transported to the town’s
website.<span style="mso-spacerun: yes;"> </span>Very nifty.<span style="mso-spacerun: yes;"> </span>Once I had finished my reconnaissance of a
few select towns, I settled down to plodding alphabetically through the list.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: "Cambria","serif";"> I headed
straight to “regulated activity” in the definition sections of the
regulations.<span style="mso-spacerun: yes;"> </span>If there was no mention of
an upland review area, I searched for “upland review area” in the regulations.<span style="mso-spacerun: yes;"> </span>When I bumped into “vegetated buffers” in the
“B”s (Bloomfield) I went back and added that to my search.<span style="mso-spacerun: yes;"> </span>I also looked for specific definitions of “vernal
pool” or regulations treating vernal pools in a separate manner.<span style="mso-spacerun: yes;"> </span>And then, I kept notes and verbatim text of
anything else that piqued my curiosity.<span style="mso-spacerun: yes;"> </span>I
had plenty of data to evaluate.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: "Cambria","serif";"> Once it became
clear that 25% of the towns did not have their wetlands regulations online, I
realized this undertaking with a mid-November deadline was no longer a
one-woman project.<span style="mso-spacerun: yes;"> </span>I started making
telephone calls to over 40 towns in hopes that staff would fax or email
sections of their wetlands regulations.<span style="mso-spacerun: yes;">
</span>Telephone tag, no staff listed online, staff in some towns work one or
two days only, etc.<span style="mso-spacerun: yes;"> </span>I turned to my alma
mater, Wesleyan University.<span style="mso-spacerun: yes;"> </span>Through some
fortuitous turn of events, I, desperately seeking assistance, was destined to meet
up with Vanessa Castello, desirous of an environmental law internship, Class of
2015, a double major (earth & environmental science/anthropology).<span style="mso-spacerun: yes;"> </span>I offered her a tutorial on Connecticut
wetlands law, the opportunity to co-present our findings at the CACIWC annual
meeting, free rein at graphics to accompany our presentation and eternal
recognition.<span style="mso-spacerun: yes;"> </span>(Hey, our materials for the
conference are posted on the CACIWC website.)<span style="mso-spacerun: yes;">
</span>She offered me her time, phenomenal graphics (3-D!) and patience as she
taught me how to use google docs so that we could both work on it at the same
time.<span style="mso-spacerun: yes;"> </span>(You <i style="mso-bidi-font-style: normal;">can</i> teach an old dog . . . ) </span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: "Cambria","serif";"> When I finished
my first round of online searches, I had located regulations for 75% of the
towns.<span style="mso-spacerun: yes;"> </span>Vanessa took the 25% and found
another 5% online.<span style="mso-spacerun: yes;"> </span>(New dogs can do some
things better . . .) Then, between the two of us, we placed calls to the
remaining 20% of the towns. We estimate that another 5% of the towns
immediately put their wetlands regulations online when we disclosed we couldn’t
find them. Unexpected service! <span style="mso-spacerun: yes;"> </span>Staff
from a variety of municipal offices faxed or emailed us another 10% of the
regulations.<span style="mso-spacerun: yes;"> </span>At the end of the research
phase, after having placed a minimum of three phone calls per unresponsive
town, we didn’t hear back from 5% of the towns.<span style="mso-spacerun: yes;">
</span>Our survey includes the results from 161 out of 169 towns, 95%.<o:p></o:p></span></div>
<br />
<div class="MsoNoSpacing" style="margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif";">75
% <span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>regulations
readily accessible online (well, I found them)</span></div>
<div class="MsoNoSpacing" style="margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif";"><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span>5 % <span style="mso-tab-count: 1;"> </span>additional regulations found by intern</span></div>
<div class="MsoNoSpacing" style="margin: 0in 0in 0pt;">
<u><span style="font-family: "Times New Roman","serif";"><span style="mso-spacerun: yes;"> </span>5 %</span></u><span style="font-family: "Times New Roman","serif";"> <span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>added by towns in response to survey</span></div>
<div class="MsoNoSpacing" style="margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif";">85
% <span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>wetlands
regulations currently online</span></div>
<div class="MsoNoSpacing" style="margin: 0in 0in 0pt;">
<u><span style="font-family: "Times New Roman","serif";">10
%</span></u><span style="font-family: "Times New Roman","serif";"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>regulations
supplied by municipal staff or agency chairman</span></div>
<div class="MsoNoSpacing" style="margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif";"><span style="mso-spacerun: yes;"> </span>95 %<span style="mso-tab-count: 1;"> Total</span></span></div>
<div class="MsoNoSpacing" style="margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt;"><o:p> </o:p></span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: "Cambria","serif";">In the next
phase I color-coded text for a variety of parameters (such as a uniform upland
review area between wetlands and watercourse, variable upland review area,
specific definition for vernal pool, and other topics.)<span style="mso-spacerun: yes;"> </span>Vanessa crunched the colors and created
graphics to represent the data.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: "Cambria","serif";">Our survey is as
up-to-date as the municipal websites.<span style="mso-spacerun: yes;"> </span>We
did not check the online regulations with the official regulations filed with
each town clerk.<span style="mso-spacerun: yes;"> </span>Nor did we examine how
the regulations are applied by the towns.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: "Cambria","serif";">After a short
plea to the eight as-of-yet unresponsive towns in the next post, we’ll then go
color by color through the survey.<o:p></o:p></span></div>
Janet P. Brookshttp://www.blogger.com/profile/02115855738959544965noreply@blogger.com1tag:blogger.com,1999:blog-1372543555119802725.post-18514693173837809692014-02-22T09:48:00.000-05:002014-02-22T09:48:37.519-05:00Odyssey to the shores of municipal wetlands regulations
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: "Cambria","serif";"> It all started
last June when I received an email with a link to some “over-the-top” wetlands
regulations establishing vegetated buffers. (You can only mow your lawn once a
season and that is only if it was a “formal lawn” as of the effective date of
the regulation.) I was asked if I knew about these municipal wetlands
regulations. <span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span>Indeed I didn’t .<span style="mso-spacerun: yes;"> </span>Although I had worked with a loose consortium
of environmental interests for three legislative sessions on wording for a bill
to protect vegetated buffers in the wetlands law, I don’t think any of us knew
that some wetlands commissions had already adopted regulations.<span style="mso-spacerun: yes;"> </span>I sent out the link to two attorneys, one who
might have had a hand in guiding the regulations (Attorney Mark Branse swears
he didn’t) and one in the attorney general’s office who may have sniffed around
these regulations either from DEEP or from reviewing all appeals filed in
superior court of municipal wetlands agency decisions (AAG David Wrinn swears
similar to Mark Branse, at least in this regard).<o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: "Cambria","serif";"><span style="mso-tab-count: 1;"> </span>I began to wonder how many other
towns had vegetated buffer or other anomalies in their regulations, which are
not found in the 2006 versions of the model regulations developed by DEEP.<span style="mso-spacerun: yes;"> </span>In a state of home rule that means 169
varieties of municipal wetlands regulations.<span style="mso-spacerun: yes;">
</span>There is an entity to “exercise general supervision of the
administration and enforcement” of the wetlands act, CGS § 22a-39 (a), and to “develop
comprehensive programs in furtherance of the purposes” of the act, CGS § 22a-39
(b), and to “advise, consult and cooperate with other agencies . . .”, CGS §
22a-39 (c), and to “encourage, participate in or conduct studies, investigations,
research and demonstrations, and collect and disseminate information, relating
to the purposes of” the act, CGS § 22a-39 (d) -- it’s not a private
citizen.<span style="mso-spacerun: yes;"> </span>The Commissioner of DEEP has
those duties and more.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: "Cambria","serif";"><span style="mso-tab-count: 1;"> </span>Municipal agencies are required to
send a copy of the public notice of proposed amendments to municipal
regulations to DEEP at least 35 days prior to the scheduled public
hearing.<span style="mso-spacerun: yes;"> </span>CGS § 22a-42a (b).<span style="mso-spacerun: yes;"> </span>True, the wetlands act doesn’t <b style="mso-bidi-font-weight: normal;">explicitly</b> require DEEP to do anything
with those regulations.<span style="mso-spacerun: yes;"> </span>And indeed they
don’t . . . do . . . anything . . . with proposed regulations.<span style="mso-spacerun: yes;"> </span>This is not a recent behavioral change.<span style="mso-spacerun: yes;"> </span>At some point, maybe in 2000, I read a memo
from the DEP Inland Water Resources Division that DEP would no longer continue
reviewing proposed municipal regulations as they were sent to DEP due to staff
constraints.<span style="mso-spacerun: yes;"> </span>At the time I was in the
Attorney General’s Office working on wetlands issues; I approached as many DEP
staff as possible to reverse that decision.<span style="mso-spacerun: yes;">
</span>To no avail.<o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: "Cambria","serif";"><span style="mso-tab-count: 1;"> </span>During the summer of 2013 I
continued to wonder about the variability (read: legality) of the permutations
found within municipal wetlands regulations.<span style="mso-spacerun: yes;">
</span>Those musings lay unexplored just like the grass growing in that formal
lawn in that municipally-established vegetated buffer not yet ripe for its
once-a-season cutting.<o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: "Cambria","serif";"><span style="mso-tab-count: 1;"> </span>I set off on my odyssey in
September 2013 in which I began looking at the municipal regulations of a “few”
municipalities which turned into an obsession and ultimately to a systematic
examination of the municipal regulations of 95% of all towns.<span style="mso-spacerun: yes;"> </span>I compiled and analyzed the definitions of “regulated
activity” and the concepts, if they existed in the regulations, of upland
review area, vernal pools and vegetated buffers.<o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: "Cambria","serif";"><span style="mso-tab-count: 1;"> </span><i style="mso-bidi-font-style: normal;">Next: methodology<o:p></o:p></i></span></div>
Janet P. Brookshttp://www.blogger.com/profile/02115855738959544965noreply@blogger.com1tag:blogger.com,1999:blog-1372543555119802725.post-39601351827022271322012-05-31T19:37:00.002-04:002012-05-31T19:37:41.001-04:00New state land court to be assigned judges beginning September 2012The Honorable Marshall K. Berger, administrative judge for the judicial district of Hartford, recently addressed the Planning & Zoning section of the Connecticut Bar Association, providing details for the newly proposed land court within the state court system. Judge Berger prefaced his remarks by stating the final shape of the land court will be determined by the number of judges who asked to be assigned to it. The full proposal sets up a three-judge court, with Judge Berger being the chief judge, assigned to the judicial district of Hartford, with one judge operating in the eastern half of the state (Norwich or New London) and another in the western part of the state (perhaps Bridgeport or Stamford). <br />
<br />
Once the judges who have volunteered have been assigned, the judges will begin reviewing the pending land use appeals for the initial batch of cases to be transferred into the docket. The affordable housing appeals currently handled from the scheduling order through the briefing stage by Judge Cohn in New Britain will continue to be segregated and handled by him. At least for the initial implementation of the court no appeals involving variances by zoning boards of appeal will be transferred to the land court.<br />
<br />
The cases to be targeted for transfer to the land court will be inland wetlands appeals and the larger subdivision and site plan approval appeals. The scope of the docket will be greater than land use appeals. Also included will be lawsuits involving land use, such as nuisance claims as well as environmental claims. When pressed to describe the environmental cases with more specificity he said: "You know, dirt, contamination, groundwater, river pollution." State environmental enforcement cases filed by the Attorney General's Office will not be transferred to the land court. Historic district commission appeals would be considered; water pollution control authority appeals and condemnation cases will not. Zoning enforcement and wetlands enforcement suits would come within the scope of the docket.<br />
<br />
If the first incarnation of the land court has only one judge (Judge Berger) a smaller number of cases will be transferred to the docket. In that case it will function like the Complex Litigation Docket where parties can apply for their cases to be transferred to the docket. <br />
<br />
The goal of the court will be to reduce the time that land use cases take until final disposition. There are currently a total of approximately 400 land use agency appeals pending in the superior courts throughout the state.<br />
<br />
After his presentation I asked Judge Berger what the genesis of the land court was -- given the current fiscal constraints on the Judicial Department. He answered cryptically, mumbling "Brendan Sharkey." Representative Brendan Sharkey, that is, who as chairman of the General Assembly's Planning and Development Committee proposed a bill in 2009 that would have required each judicial district to have a land use appeals docket with judges experienced in land use matters to hear all appeals. Not just that. The Chief Court Administrator would have had to establish procedures for the implementation and submit a report to the General Assembly's Joint Standing Committee on Planning and Development. Click <a href="http://www.cga.ct.gov/2009/FC/pdf/2009HB-06589-R000338-FC.pdf">here</a> to read Rep. Sharkey's Bill 6589 from 2009.<br />
<br />
Without further explication on the judge's part, I connected the dots that the Judiciary prefers to chart its own destiny and not be ordered to undertake new dedicated dockets and report back to the Legislature. But why now, after three years? Rep. Sharkey did not submit the bill in the past two sessions. With the possibility that he may be the next Speaker of the House, perhaps the Judicial Department wished to defuse any momentum remaining for a <em>legislative</em> initiative to create a land court.<br />
<br />
I used to think it was good enough to keep up with what bills the General Assembly did pass. Now I guess we have to keep track of the unsuccessful efforts as well. <br />
<br />
<br />
<br />Janet P. Brookshttp://www.blogger.com/profile/02115855738959544965noreply@blogger.com0tag:blogger.com,1999:blog-1372543555119802725.post-92148225102691473842012-03-31T09:46:00.005-04:002012-03-31T09:58:02.144-04:00In the Search for Search Warrants<em><strong>Bozrah v. Chmurynski</strong></em>, 303 Conn. 676 (2012), Part II:<br /><br />This is the second posting reflecting on the Connecticut Supreme Court's decision holding that a court injunction that ordered an individual to allow a municipal zoning enforcement officer to inspect the curtilage (What's that? See the previous blog entry) of his property was improper because it was not based upon "probable cause," as required by the Fourth Amendment to the United States Constitution.<br /><br />The Fourth Amendment actually addresses <em>search warrants</em>:<br /><br /><span style="font-family:arial;">The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.<br /><br /></span>The state Supreme Court ruled that a judicial hearing before a judge that results in an order requiring the defendant to allow a search of private property is the functional equivalent of search warrant . . . as long as the order is based upon probable cause.<br /><br />The problem from the town's perspective is that it has to invest alot of municipal muscle -- time and money -- for a court to issue an injunction. It would involve: the preparation and filing of a legal complaint, hiring a state marshal to serve the landowner, payment of a $300 court filing fee, awaiting the matter being placed on a list for temporary injunctions to be considered, scheduling of the injunction at which the landowner has the right to cross-examine, oppose the application for an order, filing of briefs at the close of the hearing or at some time thereafter, awaiting the court decision which may lawfully be issued within 120 days after the hearing or briefs are filed. The timeframe would be even longer if the town would be seeking a permanent injunction, as the hearing would await the closing of the pleadings.<br /><br />In <em>Bozrah</em> the state Supreme Court noted in C.G.S. § 54-33a the authority for a prosecutor (an employee of the State's Attorney's Office) to seek a search warrant for criminal violations of zoning regulations. There is no provision in the zoning statutes -- <em>nor in the wetlands statutes</em> -- for a town to seek an administrative search warrant for an investigation the scope of which is civil, not criminal. A search warrant is issued ex parte, that is, based on the affidavit of the town. There is no further hearing. There is no opportunity for the landowner to dispute the allegations in the affidavit.<br /><br />The state Supreme Court's words:<br /><br /><span style="font-family:arial;">Furthermore, whether a statutory procedure akin to § 54-33a should be enacted to authorize ex parte judicial orders in the circumstances present by this case is an issue appropriately addressed by the General Assembly, rather than this court.<br /></span><br /><em>Bozrah v. Chmurynski</em>, 303 Conn. 676, 695 n. 11 (2012).<br /><br />Fast forward to this legislative session to <a href="http://www.cga.ct.gov/2012/TOB/H/2012HB-05502-R00-HB.htm">Raised Bill No. 5502</a>, An Act Concerning Standing to Appeal a Zoning Decision and Municipal Power to Obtain a Search Warrant. In section 2 of the raised bill, a new power, in § 7-148(c)(10), would be added to the "miscellaneous" powers already enumerated:<br /><br /><span style="font-family:arial;">(F) Obtain a search warrant from the superior court for the judicial district in which the municipality is located for the purpose of enforcing a municipal ordinance or regulation adopted pursuant to (i) this section, (ii) section 7-147a, 8-2, 8-25 or 22a-42, or (iii) any other provision of the general statutes related to municipal administration or enforcement. </span><br /><br />(The reference to "22a-42" brings the state wetlands law into the scope of this proposed bill.)<br /><br />A sampling of the comments made at the public hearing held by the Judiciary Committee gives a flavor of the cross-section of opinions on this issue. We learn that <a href="http://www.cga.ct.gov/2012/JUDdata/Tmy/2012HB-05502-R000319-Attorney%20Dennis%20O">Attorney Dennis O'Brien </a>who represents a number of municipalities read footnote 11 carefully and drafted a provision, which was the genesis of section 2 of the raised bill. He fully respects the Supreme Court's decision and acknowledges the constitutional rights of citizens while explaining the hardships incurred by towns in seeking an order for inspection by injunction. Caution: a neighbor's complaint will not be sufficient grounds for the granting of a search warrant, unless the complaint constitutes <strong>probable cause</strong>.<br /><br />The state <a href="http://www.cga.ct.gov/2012/JUDdata/Tmy/2012HB-05502-R000319-Division%20of%20Criminal%20Justice-TMY.PDF">Division of Criminal Justice</a> supports the provision and wants the bill to go even further, by including state codes (fire codes, housing codes, etc.) . Isn't this testimony that would be expected from the Connecticut Council on Municipalities (CCM)?<br /><br /><a href="http://www.cga.ct.gov/2012/JUDdata/Tmy/2012HB-05502-R000319-CT%20Conference%20of%20Municipalities-TMY.PDF">CCM</a>'s quite brief testimony characterized the Bozrah decision "unfortunate and problematic." "By requiring a 'probable cause' standard before initiating an inspection without an owner's consent, the Court unnecessarily compromises the public health and safety of residents." Ouch. Time for CCM to refresh its understanding of the United States Constitution. Let's send them to Civics Lesson 101: Introduction to the Bill of Rights.<br /><br />The legal counsel in the <a href="http://www.cga.ct.gov/2012/JUDdata/Tmy/2012HB-05502-R000319-Division%20of%20Public%20Defender%20Services%20-%20Deborah%20Del%20Prete%20Sullivan-TMY.PDF">Office of the Chief Public Defender </a>opposes extending the authority to seek search warrants to administrative land use agencies. It is interesting that the Division of Criminal Justice and the Division of Public Defender Services felt called upon to weigh in on administrative search warrants -- given that neither of them handles civil matters. The legal counsel correctly points out that the Fourth Amendment applies to criminal search warrants. But the Fourth Amendment is, in fact, not restricted to criminal matters. While she points out the difference between injunctions and search warrants, search warrants are not prohibited by the Constitution; they are explicitly referenced.<br /><br />This tool is available to the commissioner of DEEP. In my tenure as an assistant attorney general I had one occasion in eighteen years to seek an administrative search warrant on behalf of the DEP commissioner regarding pesticide violations. It involved a lot of work preparing the affidavit for the DEP employee to sign. The statutory authority for the commissioner is quite clear and comprehensive:<br /><br /><span style="font-family:arial;">(a) The commissioner may: . . . (5) in accordance with constitutional limitations . . . may apply to any court having criminal jurisdiction for a warrant to inspect such premises to determine compliance with any statute, regulation, order or permit administered, adopted or enforced by him . . . </span><br /><span style="font-family:arial;"><br /></span>C.G.S. § 22a-6.<br /><br />The beauty of that section is that it includes the reminder of the constitutional limitations, while setting forth the commissioner's authority.<br /><br /><div align="left"></div><br /><div align="center">* * *</div><br /><div align="left"><br />The sand is quickly flowing in the hourglass of the Judiciary Committee. Its deadline for voting bills out of committee is the end of Monday, April 2nd. Until such a law is enacted there is no authority for a land use agency to apply for an administrative search warrant.</div><br /><div align="left"><br />Anyone who is referring to the Basic Land Use Law publication that accompanied the Connecticut Bar Association's course held on October 18, 2011, should realize that the section entitled "Administrative Search Warrant" on pages 437-438 is not consistent with the state Supreme Court's ruling in footnote 11 on page 695 of the <em>Bozrah</em> decision. Search warrants as a tool in the enforcement of land use regulations will have to await the enactment of a state law. </div><br /><div align="left"></div>Janet P. Brookshttp://www.blogger.com/profile/02115855738959544965noreply@blogger.com0tag:blogger.com,1999:blog-1372543555119802725.post-89611294099169853122012-02-24T14:03:00.001-05:002012-02-24T14:10:17.457-05:004th Amendment prohibition of unreasonable searches applies to land use agencies<strong><em>Bozrah v. Chmurynski</em></strong>, 303 Conn. 676 (2012), Part I:<br /><br /><em>For those of you who read with music in the background, your choice of music to accompany this reading most appropriately would be Neely Bruce's setting of the "Bill of Rights." <a href="http://www.neelybrucemusic.com/">Neely</a> is a composer and professor of music at Wesleyan University. He is in the process of rehearsing a production of the Bill of Rights to be performed for United States Supreme Court Justice Antonin Scalia who will be at Wesleyan University on March 8, 2012. ( I will be a soprano in the chorus.) Click <a href="http://www.youtube.com/watch?v=1a8c2EJ1fs4">here</a> to listen and watch a previous performance of the piece in Washington, D.C. For the 4th Amendment, begin at 19:25. For those who read the last page of a mystery first, begin at 20:34 to pinpoint which portion of the 4th Amendment the Connecticut Supreme Court held was violated in the Bozrah case discussed below.</em><br /><br />On February 14th the Connecticut Supreme Court issued its unanimous decision in Bozrah v. Chmurynski, 303 Conn. 676 (2012). (Click <a href="http://www.jud.ct.gov/external/supapp/Cases/AROcr/CR303/303CR26.pdf">here </a>or <a href="http://scholar.google.com/scholar_case?case=8598231283142696559&q=intitle:chmurynski&hl=en&as_sdt=4,7">here</a> for the decision.) In that case the Supreme Court reversed the trial court order requiring the private landowners (the defendants) to allow the zoning enforcement officer (the plaintiff) to inspect their residential property. The Supreme Court held that the trial court did not apply the standard of proof required by the 4th Amendment to the U.S. Constitution, which prohibits unreasonable searches by the government unless a search warrant is issued based upon probable cause.<br /><br />Why is this appearing in a blog on state wetlands law? Yes, there are differences between zoning law and wetlands law. In zoning there is a statutory right to conduct inspections; not so, in the wetlands law. Yes, the zoning case involved inspection of a residence and its curtilage. ("Curtilage" was defined in United States v. Dunn, 480 U.S. 294 (1987), as the area immediately surrounding a residence that "harbors the `intimate activity associated with the sanctity of a man's home and the privacies of life.' ") Maybe the wetlands inspections will fall into the "open fields" category instead. Maybe, but then again the upland review area close to a residence may well be part of the curtilage.<br /><br />A reminder: these comments shouldn't be construed as a primer on 4th Amendment jurisprudence or any other aspect of wetlands law. At best they should give anyone, on behalf of a wetlands agency, reason to pause and seek legal advice before entering property without the owner's consent to conduct a wetlands inspection.<br /><br />What happened in Bozrah:<br /><br />The first selectman by e-mail directed the zoning enforcement officer (ZEO) to inspect residential property at a specific address for unregistered motor vehicles and "other junk." Five adults reside at the address. The ZEO arrived and eventually spoke with the land owner who refused to consent to the ZEO's inspection of the residential property and curtilage. Without conducting a search the ZEO observed the following while at the address:<br /><br />· six vehicles<br />· not in disrepair<br />· with license plates<br />· registration status unknown.<br /><br />The ZEO departed and consulted with the town attorney. The ZEO returned to the property. In the interim a fence had been installed blocking the view from the street. The town initiated a civil suit seeking an injunction to allow the ZEO to conduct the inspection authorized by CGS § 8-12. Eventually the trial court held a hearing on the request for injunction and granted it. The trial court relied on the statute and municipal regulation authorizing inspections. It recognized that (1) the reasonableness requirement of the 4th Amendment applies to zoning inspections, (2) reasonableness can be satisfied with a valid governmental purpose and concluded (3) a court-ordered injunction is a proper vehicle to satisfy the 4th Amendment's "search warrant" requirement.<br /><br />Here is the text of the 4th Amendment (<em>Are you already humming along? I was, when I got to page 684 of the decision</em>):<br /><br /><span style="font-family:arial;">The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.<br /></span><br />The CT Supreme Court's reasoning relied on already developed federal case law:<br /><br />Is there a reasonable expectation of privacy? Yes. Homes and the curtilage area have been deemed areas of legitimate expectation of privacy. The fence, once installed, defined the area of curtilage. The 4th Amendment applies to civil as well as criminal searches. The 4th Amendment applies to business as well as residential properties. Where there is a reasonable expectation of privacy, a search conducted without a search warrant issued upon probable cause, is unreasonable.<br /><br />Probable Cause: <em>What it is<br /></em><br />"A preliminary showing of facts within the knowledge of the zoning officer and of which that officer has reasonably trustworthy information that are sufficient to cause a reasonable person to believe that conditions constituting a violation of the zoning ordinances are present on the subject property." Id., 692-93.<br /><br />Probable Cause: <em>What it isn't<br /></em><br /><span style="font-family:arial;">"Common rumor or report, suspicion, or even 'strong reason to suspect'</span> . . ." Id., 686.<br /><span style="font-family:arial;">"[S]imple good faith on the part of the arresting officer is not enough</span> . . ." Id., 686.<br /><br />Often all that a wetlands agency or staff has knowledge of, when motivated to inspect private property, is a rumor or suspicion. As you see, that does not constitute probable cause. <br /><br />The state Supreme Court distinguished a search motivated by a specific complaint with a general search of an area to implement regulatory enforcement. An example given was the routine annual inspection by a city housing inspector. In that case the motivation was neutral, general and not motivated by a complaint. <br /><br />Finally, the state Supreme Court ruled that a judicial hearing before a judge that results in an order requiring the defendant to allow a search of private property is the functional equivalent of search warrant . . . as long as the order is based upon probable cause.<br /><br />As to the facts in the Bozrah case, the Supreme Court concluded:<br /><br />"<span style="font-family:arial;">We do not believe that the mere fact that six vehicles, none of which appeared to be in disrepair, were parked on the property of a home where five adults resided provides sufficient reason to suspect a violation of the Bozrah zoning regulations."</span> Id., 693.<br /><br />We'll consider further thoughts in coming posts on search warrants, inspections conducted without consent and the right for wetlands agencies to conduct inspections.Janet P. Brookshttp://www.blogger.com/profile/02115855738959544965noreply@blogger.com0tag:blogger.com,1999:blog-1372543555119802725.post-5062776552273977792012-02-16T14:13:00.004-05:002012-02-16T14:24:28.019-05:00Creation of state court land use docket announcedIt was announced today that a state court land use docket will be created within the state court system. The Honorable Marshall K. Berger will preside over the docket. The news was broadcast today by a phone call from Judge Berger to Attorney Ira Bloom, chair of the Planning & Zoning Section of the Connecticut Bar Association. The topic of a dedicated land use docket has often been discussed among Planning & Zoning Section members. (For the non-attorneys reading this, the CBA Planning & Zoning Section is not, as its title might imply, limited exclusively to those land use matters; all land use matters, such as wetlands and historic districts, fall within the ambit of the section.) The details of the location of the docket, its functioning, etc. will be disclosed at a later time.<br /><br />A dedicated land use docket could serve the purpose of greater predictability or uniformity of decision-making. This would be useful to all participants in land use controversies. Perhaps more so now, since Chief Justice Chase T. Rogers announced to the CBA Planning & Zoning Section in a talk delivered in November 2009 that we would be seeing fewer petitions for certification granted, the only means for appealing a case to the Connecticut Supreme Court. With fewer cases decided by the Supreme Court, the lower court decisions take on greater importance.<br /><br />Judge Berger handled land use cases when in private practice, representing municipalities. Two of his cases are still routinely cited. Anyone who has researched the burden of proof in claiming a statutory exemption in the wetlands law or the factors considered when wetlands agencies apply for injunctions has come across <em>Conservation Commission v. Price</em>, 193 Conn. 414 (1984) (click <a href="http://scholar.google.com/scholar_case?q=%22marshall+k.+berger%22&hl=en&as_sdt=4,7&case=10133600325943479908&scilh=0">here</a> to read the case) or if you wondered whether the attorney's fees provided by wetlands statute include fees for the appeals to the Supreme Court (yes) you would find <em>Conservation Commission v. Price</em>, 5 Conn. App. 70 (1985) dispositive. (Click <a href="http://scholar.google.com/scholar_case?q=%22marshall+k.+berger%22&hl=en&as_sdt=4,7&case=11130387073965496386&scilh=0">here</a> to read the case.)Janet P. Brookshttp://www.blogger.com/profile/02115855738959544965noreply@blogger.com0tag:blogger.com,1999:blog-1372543555119802725.post-33308216029384191572012-02-03T17:33:00.002-05:002012-02-03T17:47:24.642-05:00Restoring and Creating Wetlands? The Envelope, Please<div>As the parent of one college-age daughter and one college-bound daughter, I could say I took the semester off from posting entries to the blog or I could just get down to business. The latter. </div><br />
<br /><div><br />Last week an entry in the New York Times blog on energy and the environment, click <a href="http://green.blogs.nytimes.com/2012/01/24/not-all-wetlands-are-created-equal/">here</a>, reported on an article (click <a href="http://www.plosbiology.org/article/info:doi/10.1371/journal.pbio.1001247">here</a>) released earlier that week on the Public Library of Science Biology ("PLOS Biology") website, a peer-reviewed open-access journal published online. The article reported on what the authors characterize as only partial success of restoration and creation of wetlands in the 20th century, by examining 621 wetlands systems worldwide, comparing those impaired or recovering sites to 556 functioning/unimpaired wetland sites. </div><br />
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<br /><div>The article, "Structural and Functional Loss in Restored Wetland Ecosystems," was authored by scientists from California, Spain and France. Some trends that were noted: large wetlands areas (over 100 hectares) in warm climates recovered more rapidly than smaller areas in cold climates; riverine and tidal wetlands recovered more rapidly than isolated wetland segments. <br />The scientists reported that animals, such as birds, bats and flying insects (midges) returned within five years, while macroinvertebrates such as water fleas, returned within five to ten years. </div><br />
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<br /><div>They noted, however, that the population levels were neither as high nor as diverse. </div><br />
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<br /><div>The plant communities recovered the slowest, on average taking thirty years to recover. Again the plant populations remained less abundant and diverse, recovering to approximately 75% of prior condition. According to the authors, restoration can succeed but over longer timeframes and without complete recovery.</div><br />
<br /><div><br />When the state wetlands law was amended in 1996, click <a href="http://www.cga.ct.gov/ps96/Act/pa/1996PA-00157-R00SB-00568-PA.htm">here</a> for Public Act 96-157, the legislature included explicit language regarding mitigation of wetlands impacts. Mitigation measures include activities to "prevent or minimize" pollution or damage, "maintain or enhance existing environmental quality." The legislature established a hierarchy of preferred activities, in order of priority: "restore, enhance and create productive wetland or watercourse resources." (This language is found in two sections of the statute: § 22a-41(a) (4) and § 22a-42a (d) (1).)</div><br />
<br /><div><br />If the authors of this recently reported article in PLOS Biology site are correct, perhaps "restoring" should take a secondary position and "enhancing" or protecting current wetlands a primary one. <br /></div><br />
<br /><div>There's an opportunity soon to hear about the results of some local (CT) and regional (NY, MA) mitigation projects, that include relocation of a watercourse, wetlands creation, and other mitigation projects that have been monitored, at the CT Association of Wetlands Scientists' annual meeting on March 22, 2012. Click <a href="http://www.ctwetlands.org/annualmeetings.html">here</a> for an agenda and online registration.<br /><br /></div>Janet P. Brookshttp://www.blogger.com/profile/02115855738959544965noreply@blogger.com0tag:blogger.com,1999:blog-1372543555119802725.post-26830624200539384112011-08-10T12:54:00.002-04:002011-08-10T13:08:37.328-04:00State Supreme Court to Farming Community: Roads constructed with fill in wetlands not exempt from wetlands permit
<br />In a unanimous decision (6-0) the state Supreme Court ruled in <em><a href="http://www.jud.ct.gov/external/supapp/Cases/AROcr/cr302/302CR105.pdf">Taylor v. Conservation Commission,</a></em> that roads constructed with fill in wetlands are not exempt from the state wetlands law and a wetlands permit is required. The Supreme Court believed it was addressing only those roads the construction of which required fill. The word "construct" means, according to the Random House Webster's College Dictionary, "to build or form by putting together parts." Those parts would constitute some kind of material, which in turn, would mean, that the construction of all roads involves "fill" of some sort. I'm hard-pressed to fathom what is left of the exemption for road construction directly related to the farming operation.
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<br /><em>Full disclosure</em>: I represented the plaintiff, Jim Taylor, in his appeal to the Superior Court. I represented the Connecticut Farm Bureau Association, Inc., amicus curiae, in the Supreme Court appeal.
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<br /><em>Fuller disclosure</em>: In the 1980s I was a member of the board of directors of the Connecticut chapter of <a href="http://www.ctnofa.org/">NOFA</a> - the Northeast Organic Farming Association.
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<br /><em>Fullest disclosure</em>: My maternal grandmother was one of 10 children growing up on a farm in southwestern Germany where she spent many childhood hours working in the fields and cherry orchards. My great-grandmother fell from a piece of equipment and died in a farming accident. My father's relatives left farm fields in Southern Italy for the United States in the 1910s. In the Great Depression my father's immediate family, destitute and unable to survive in their row house in South Philly, moved in with his extended family in a 3-story multigenerational house directly across the street from the steel mills in Duquesne (Pittsburgh) where the family members, including children, who were not employed in the steel mills worked in the most amazing garden terraced into a 3-story high steep hill adjacent to their house which fed everyone in the family. From those years my father learned that farming meant family, food and freedom. I was the one to place seed packets in his casket in 1992.
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<br />To those of you who have not had to think much about the farming exemption or any exemption under the wetlands law, you might wonder what's the big deal with concluding that construction of farm roads involving fill requires a wetlands permit. After all, construction involving fill requires a wetlands permit. Regulated activities, the ones which require a permit, exclude the activities in the statutory exemption. Exempt activities, by definition do not require a permit. So, determining whether an activity is exempt is a big deal.
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<br />The statutory language for the farming exemption in Conn. Gen. Stat. § 22a-40 (a) (1) is <em><strong>not</strong></em> for the faint of heart. The first sentence is very straightforward: a number of activities of listed. Farming is one of them. Thus, farming is exempt. But then you start to wonder, what about the farm road to get the equipment to the fields or the harvest out of the fields to the market? Is that road included?
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<br />So, you proceed to the second sentence:
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<br /><span style="font-family:arial;">"The provisions of this subdivision shall not be construed to include road construction or the erection of buildings not directly related to the farming operation, relocation of watercourses with continual flow, filling or reclamation of wetlands or watercourses with continual flow . . ."
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<br />The second sentence tells you what's not in the exemption, in other words, what needs a permit -- read through the first double negative . . . are you still with me?
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<br />Here is where the friction arises:"road construction directly related to the farming operation" vs. "filling of wetlands."
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<br />The Supreme Court resolves that tension with this one-sentence conclusion:
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<br /><span style="font-family:arial;">"We conclude that, even if road construction directly related to the farming operation is permitted as of right, such road construction is not permitted as of right if it involves the filling of wetlands, because the filling of wetlands is not permitted as of right."</span>
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<br />With the "even if" phrase, the Supreme Court informs us it hasn't decided that the road construction is permitted as of right. The Supreme Court focused on the "filling of wetlands" exclusion to the exemption. That is clear. The Supreme Court states: "It [the statutory exemption re-filling of wetlands] plainly and unambiguously does not permit the filling of wetlands as of right." Ok.
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<br />But what is left of the "road construction exemption? Hard to know. The Supreme Court stated in the text of the decision (quoted above) that it hasn't decided whether there is a road construction exemption. If you missed that in the decision, you can reread it in footnote 10: "We emphasize that, because we conclude that filling in wetlands is not permitted as of right, we do not address the questions of whether road construction directly related to the farming operation is permitted as of right . . ."
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<br />The Supreme Court notes the wetlands staff memo mentions that floodplain soils can be sturdy enough to drive on. The genesis of this position is from Steve Tessitore, former DEP employee in the wetlands program. Such use of land isn't the same as road construction. In that case, no road construction is necessary. But what about when road construction <em><strong>is</strong></em> necessary?
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<br />Back to the definition, how do you build a road without putting together parts . . . composed of materials . . . which constitute fill? The Supreme Court, in footnote 8, holds the plaintiff responsible:
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<br /><span style="font-family:arial;">"(B)ecause the plaintiff has not demonstrated that all road construction on wetlands requires the use of fill, the plaintiff has not demonstrated that our interpretation of the statute renders the subject clause meaningless." </span>
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<br /><em>Now do you understand what kind of farm road can be constructed without fill and satisfy the exemption . . . if the exemption even exists?
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<br />I shared my initial thoughts with a number of consultants who have worked on the farming exemption. Some preliminary responses with twists of my own: If no road was needed to be constructed because the soil supported the weight of farm vehicles, but over time the area becomes rutted, is a permit needed to fill those ruts? Is the answer different if a farm road was built according to a permit and the road gets rutted? Another: Will we return to a time when tractors get stuck in wetlands because getting a permit for a road will be too difficult?
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<br />Whenever I write about the farming exemption I end up with the same thought: don't the wetlands agency members and those seeking to farm deserve a straightforward statute that spells out what is exempt and what is not?
<br />Janet P. Brookshttp://www.blogger.com/profile/02115855738959544965noreply@blogger.com0tag:blogger.com,1999:blog-1372543555119802725.post-76404078289569800132011-06-30T20:20:00.004-04:002011-06-30T20:33:34.479-04:00Public Act 11-184: New exemption, of a sort: dry hydrants for firefightingAt the beginning of the legislative session I reported on the effort to streamline consideration under the wetlands act, of the installation of a dry hydrant for firefighting purposes. <a href="http://www.cga.ct.gov/2011/TOB/h/pdf/2011HB-05068-R00-HB.pdf">The bill </a>as originally drafted would have infused into the statute a novel concept, as least for the wetlands act, of a "rebuttable presumption." That original language would have created a presumption that an application for a permit for the installation of a dry hydrant, for any purpose, be granted. That presumption could be rebutted upon the demonstration "that there is a feasible and prudent alternative access to a public water supply that has a less adverse impact on wetlands and watercourses. "<br /><br />That language would have created a new path for undertaking a activity affecting wetlands or watercourses : 1) upon the granting of a permit where the applicant has the burden of proving it is entitled to the permit; 2) upon the agency determination that the activity is exempt from the act; and per the original draft language, 3) for dry hydrants upon the filing of an application where the applicant has no burden of proof and the agency with the burden of proof, does not rebut the application with evidence that there is a feasible and prudent alternative, a public water supply, with less impact to the wetland or watercourse.<br /><br />I'm glad that the concept of a "rebuttable presumption" disappeared as the bill wended its way through the legislature. Although retaining the concept in its caption; AN ACT CREATING A REBUTTABLE PRESUMPTION FOR THE APPROVAL OF AN INLAND WETLANDS PERMIT FOR A DRY HYDRANT; <a href="http://www.cga.ct.gov/2011/ACT/PA/2011PA-00184-R00HB-05068-PA.htm">Public Act 11-184 </a>has moved on from that concept and today was delivered to the Secretary of the State. It will, presumably, be signed by the governor shortly. Once signed, the public act will go into effect October 1, 2011.<br /><br />The exemption for the dry hydrant is broken into two activities, each of which is handled in separate portions of the exemption statute. The "withdrawals of water for fire emergency purposes" becomes exemption #7 in General Statutes § 22a-40 (a), which starts with the farming exemption as #1. So, before the water can be withdrawn the fire department will need to put in writing its plan to withdraw water for firefighting purposes. That seems like a straightforward determination for the wetlands agency to rule on: either the fire department is withdrawing water for fire emergency purposes and is exempt, or it is not for fire emergency purposes and the fire department needs to apply for a purpose. An agency doesn't consider the impact of the activity on the wetland or watercourse, if it is listed in subsection (a) of § 22a-40.<br /><br />But the preliminary activity, installing the dry hydrant was inserted into subsection (b) of § 22a-40, where an environmental determination must be made. The subsection (b) exemptions "shall be permitted, as nonregulated uses in wetlands or watercourses <strong><em>provided they do not disturb the natural and indigenous character of the wetland or watercourse by removal or deposition of material, alteration or obstruction of water flow or pollution of the wetland or watercourse</em></strong>." The fire department will bear the burden of proof that the installation of the dry hydrant (1) does not disturb the natural and indigenous character of the watercourse by (2) removal or deposition of material, (3) alteration or obstruction of water flow, or (4) pollution of the watercourse. That is standard for any of the (b) exemptions. In addition, the installation of the dry hydrant will have to meet the additional requirements spelled out in the new (7):<br /><br />The installation of a dry hydrant by or under the authority of a municipal fire department, provided such dry hydrant is only used for firefighting purposes and there is no alternative access to a public water supply. For purposes of this section, "dry hydrant" means a non-pressurized pipe system that: (A) Is readily accessible to fire department apparatus from a proximate public road, (B) provides for the withdrawal of water by suction to such fire department apparatus, and (C) is permanently installed into an existing lake, pond or stream that is a dependable source of water.<br /><br />As Jonathan Schwartz <a href="http://www.blogger.com/comment.g?blogID=1372543555119802725&postID=4905043698988864764">commented</a> after my previous post on this bill, the Burlington wetlands agency of which he is a long-term member hadn't denied any permit to the fire department; it just required the submission of necessary information. His concern that the original bill strips the agency's authority to protect wetlands and watercourses was addressed, even if unintentionally by the legislature, by putting the exemption into subsection (b) of § 22a-40, instead of § 22a-40 (a). Rather than exempt the installation of the dry hydrant regardless of the installation's effect on the wetlands and watercourses (which is the case for the exemptions listed in § 22a-40 (a), the wetlands agency will retain authority to examine the environmental impact. For the fire department to qualify for the exemption for the installation of the dry hydrant, it will have to supply information to establish it won't disturb the natural and indigenous character as well as the other specific elements of the exemption set forth in (7).<br /><br />Public Act 11-184 clearly spells out the information that a fire department will need to provide in its request for determination of exemption and sets the scope of the agency's review.Janet P. Brookshttp://www.blogger.com/profile/02115855738959544965noreply@blogger.com0tag:blogger.com,1999:blog-1372543555119802725.post-17593070733912040022011-06-09T09:47:00.003-04:002011-06-09T10:03:49.723-04:00Into the DEEPOn Tuesday, <a href="http://www.cga.ct.gov/2011/TOB/S/2011SB-01243-R00-SB.htm">legislation</a> passed both chambers of the General Assembly creating a successor agency to DEP. (<a href="http://www.cga.ct.gov/2011/AMD/S/2011SB-01243-R00SA-AMD.htm">Senate Amendment A</a> is apparently part of the final bill as well.) Effective July 1, 2011 (I hesitate as I write the effective date, see previous post), the new agency, the Department of Energy and Environmental Protection, DEEP, will come into existence. The commissioner of DEP will become the commissioner of DEEP. The statutory duties of the former will become the duties of the latter, although the latter will take on additional duties in the realm of energy policy. For a thorough description of the new DEEP, click <a href="http://www.cga.ct.gov/2011/BA/2011SB-01243-R00-BA.htm">here </a>for OLR's analysis of the bill. (Warning: do not hit the "print" button unless your printer is full of paper.) As far as the administration of the Inland Wetlands & Watercourses Act, I perceived this change as no change and, thus, not particularly newsworthy in this blog.<br /><br />One of my faithful readers begged to differ. After receiving no response from me to his e-mail, he called me to pursue the issue. I articulated my premise that for our wetlands purposes, this is just the status quo.<br /><br />The new legislation, for instance, in section 1, defines the goals of the environmental side of DEEP as follows:<br /><br /><span style="font-family:arial;">For the purpose of environmental protection and regulation, the department shall have the following goals: (A) Conserving, improving and protecting the natural resources and environment of the state, and (B) preserving the natural environment while fostering sustainable development.</span><br /><br />The phrase "conserving, improving and protecting the natural resources and environment of the state" in (A) should sound familiar. Compare the language establishing the State Policy at the beginning of the environmental protection statutes, in General Statutes § 22a-1:<br /><br /><span style="font-family:arial;">Therefore the General Assembly hereby declares that the policy of the state of Connecticut is to conserve, improve and protect its natural resources and environment . . .<br /><br /></span>I don't want to overthink this and read too much into small word changes, but the establishment of the DEP in 1971 spoke of DEP's jurisdiction, in General Statutes § 22a-2(a):<br /><br /><span style="font-family:arial;">over all matters relating to the preservation and protection of the air, water and other natural resources of the state.<br /></span><br />Section (B) in the new duties seems less to come from the DEP duties but to be an updating, of sorts, of the last phrase of the State Policy, in General Statutes § 22a-1:<br /><br /><span style="font-family:arial;">to manage the basic resources of air, land and water to the end that the state may fulfill its responsibility as trustee of the environment for the present and future generations.<br /><br /></span>I, myself, like the timelessness of the concept of trustee of the environment while actively managing the resources. "Sustainable development" is so trendy and hip. I'm not ready to state that the absorbed DEP will have a different perspective in the new DEEP.<br /><br />However, I am already rethinking my premise that the status quo is preserved.<br /><br /><em><strong>Who wouldn't after the Haddam land swap was approved last night?</strong></em><br /><br />For those of you spending too much time following Representative Weiner's sextings or the televised oral argument in the 11th Circuit Court of Appeals on the constitutionality of the federal health care plan, as the case may be, here's a thumbnail sketch of the Haddam land swap. In 2003 the DEP purchased 17 acres of property in Haddam with picturesque views of the Connecticut River, the swing bridge and the Goodspeed Opera House with $1.3 million dollars under a state conservation program to preserve open space. Senator Eileen Dailey tried last year and renewed her efforts this year to give these 17 acres to Riverhouse Properties which owns a banquet center and would like to build a hotel and retail complex on those acres, in exchange for 87 acres adjacent to Cockaponset State Forest, purchased by Riverhouse Properties in 2009 for $450,000.<br /><br />Former DEP Commissioner Amey Marella opposed the land swap, as did former Governor Rell. The co-chairs of the Environment Committee asked Commissioner Dan Esty to advise them of the DEP's position on the swap of this land. The commissioner offered no response.<br /><br />To any thinking person, it is a no-brainer that the DEP should weigh in on the swap of land that DEP acquired recently with funds from a state conservation program to acquire open space for public use. In these waning days of the DEP the ink on the page directing DEP to "preserve and protect" seems to have already faded. Is the bar so low to defining sustainable development that any business activity will suffice? The governor still has the opportunity to put on his thinking cap and examine this issue. I hope he does.<br /><br />I retract my earlier statement that this new bill is an expression of the status quo for the Inland Wetlands & Watercourses Act or anything else under DEP's jurisdiction. It's too soon to say.Janet P. Brookshttp://www.blogger.com/profile/02115855738959544965noreply@blogger.com0tag:blogger.com,1999:blog-1372543555119802725.post-62508527662890207112011-06-07T12:49:00.004-04:002011-06-07T12:55:53.099-04:00Public Act 11-5 lengthening existing wetlands permits in effect as of May 9thTime will tell, indeed. I last wrote, wondering whether the <a href="http://www.cga.ct.gov/2011/ACT/PA/2011PA-00005-R00SB-00859-PA.htm">Public Act 11-5 which </a>I hypothesized would go into effect October 1st would cause a mini-spike in wetlands agency work. To recap, that public act extends the life of wetlands permits to 9 years, with a possible extension of up to a total of 14 years. The automatic increase in length of the permit applies to all wetlands permits (and a variety of other specified land use permits/approvals) which haven't expired on the effective date of the public act and were issued prior to July 1, 2011.<br /><br />I didn't note the 2-prong conditions which determine if a wetlands permit qualifies for the automatically lengthening. I overlooked the parenthetical phrase, "(Effective from passage)," within the first sentence of section 4, the section of the bill addressing the wetlands act, as well as the phrase applying this to permits issued prior to July 1st. The Public Act became law with the governor's signature on May 9, 2011. <br /><br />Did I have a moment of insight to catch my reading oversight? Not at all. DEP wetlands staff Darcy Winther, in the most deferential way possible, wrote me a personal e-mail wondering if I might clarify my previous post given the inclusion of the phrase, "effective upon passage." Clarify? Civility is alive and well and living in the corridors of DEP (or do I mean DEEP? Not yet in effect?)<br /><br />I'm sure this was going to be a headache for Darcy to have to straighten out in DEP training, so I will clarify, <em>ahem</em>, correct my previous post. To qualify for the automatically longer permit term, one of the following conditions must be satisfied:<br /><br />(1) there is already a permit in effect which has not yet expired as of May 9, 2011<br />or<br />(2) if there is no permit as of May 9th, a permit is issued prior to July 1, 2011.<br /><br />Wetlands permits issued from July 1st forward will revert to the 2 - 5 year permit length, with a possible renewal for 5 years. The mini-spike of wetlands agency work that I wondered about in the previous post will end on June 30. I suspect few projects will be able to rush in for a permit, unless they did so last month.<br /><br />To err is human; to be politely and discreetly informed of one's shortcomings is divine. Thank you, Darcy.Janet P. Brookshttp://www.blogger.com/profile/02115855738959544965noreply@blogger.com0tag:blogger.com,1999:blog-1372543555119802725.post-77072261830089907932011-05-31T22:19:00.002-04:002011-05-31T22:27:32.062-04:00The bill to extend the length of wetlands permits is expanded and becomes lawWe last looked at Raised Bill 859, An Act Extending the Time of Expiration of Certain Land Use Permits, in March after the Planning & Development Committee of the legislature unanimously passed it out of committee. Its scope continued to expand until it became <a href="http://www.cga.ct.gov/2011/ACT/Pa/pdf/2011PA-00005-R00SB-00859-PA.pdf">Public Act 11-5</a> and was signed by the Governor Malloy on May 9th. The Public Act extends the minimum life of a variety of land use permits in virtually identical ways. We'll just focus on wetlands permits.<br /><br />The bill originally proposed to lengthen to nine years those wetlands permits issued between July 1, 2006 and July 1, 2011. The <a href="http://www.cga.ct.gov/2011/PDdata/Tmy/2011SB-00859-R000218-Bill%20Ethier,%20Chief%20Executive%20Officer,%20Home%20Builders%20Association%20of%20Connecticut-TMY.PDF">Home Builders Association of Connecticut </a>asked that all permits permanently be extended to nine years. I guess even Bill Ethier (of the Home Builders) thought that was a little extreme and alternatively recommended that the period of time for which period are automatically extended reach back to July 1, 2004 and forward to July 1, 2013.<br /><br />But the Senate took the idea of enlarging the extension and ran with it. The <a href="http://www.cga.ct.gov/2011/amd/s/pdf/2011SB-00859-R00SA-AMD.pdf">Senate amended </a>the bill by applying the new statutory minimum "to any permit issued under this section [CGS 22a-42a] prior to July 1, 2011, that has not expired prior to the effective date of this section." With no stated effective date in the public act itself, the effective date will be October 1, 2011.<br /><br /><em>Every permit in effect on October 1, 2011 "shall expire not less than nine years after the date of such approval."</em> <em>The length of a permit issued after October 1, 2011 would be determined by the application of CGS § 22a-42a(d(2)): between two and five years.</em><br /><br />This does not mean that permits get this benefit after the municipal agency reviews the permit and recalculates the expiration date. This is by legislative fiat. Whether the permit was originally valid for 2 years or 5 years, or any time in between, any permit in effect on October 1, 2011 will have a length of nine years. Such permit, if renewed by the agency may be valid for up to fourteen years. For a permit issued on September 30, 2011 the permit, with the maximum renewal, would expire on September 30, 2025. This would seem to emphasize the importance of the agency's review of changed circumstances at the time of renewal -- since almost a decade would have gone by.<br /><br />This Public Act seems to embody the Governor's mantra that the State of Connecticut is open for business, while reducing the business of the wetlands agency in determining the length of permits. But will this cause a mini-spike of business before wetlands agencies by applicants wanting applications acted on by the end of September? Time will tell.Janet P. Brookshttp://www.blogger.com/profile/02115855738959544965noreply@blogger.com0tag:blogger.com,1999:blog-1372543555119802725.post-82234220202361145082011-03-15T19:28:00.003-04:002011-03-15T19:38:51.648-04:00Legislative proposals to extend length of wetlands permits and length of time to complete regulated activitiesIn keeping with Governor Malloy’s message that Connecticut is open for business, the Planning & Development Committee of the General Assembly on March 11th <a href="http://www.cga.ct.gov/2011/TS/s/pdf/2011SB-00859-R00PD-CV118-TS.pdf">voted unanimously </a>in favor of <a href="http://www.cga.ct.gov/2011/TS/S/2011SB-00869-R00PD-CV122-TS.htm">two</a> legislative proposals that would lengthen the time within which approved regulated activities could be conducted. <a href="http://www.cga.ct.gov/2011/TOB/S/2011SB-00859-R00-SB.htm">Raised Bill 859 </a>extends the time for which certain wetlands permits (also site plan and subdivision approvals) are valid. <a href="http://www.cga.ct.gov/2011/TOB/s/pdf/2011SB-00869-R00-SB.pdf">Raised Bill 869 </a>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.<br /><br />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.)<br /><br />The <a href="http://www.cga.ct.gov/2011/PDdata/Tmy/2011SB-00859-R000218-Bill%20Ethier,%20Chief%20Executive%20Officer,%20Home%20Builders%20Association%20of%20Connecticut-TMY.PDF">sole written comment </a>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.<br /><br />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.<br /><br />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.<br /><br />Again, the sole entity/person submitting <a href="http://www.cga.ct.gov/2011/PDdata/Tmy/2011SB-00869-R000218-Bill%20Ethier,%20Chief%20Executive%20Officer,%20Home%20Builders%20Association%20of%20Connecticut-TMY.PDF">written comments </a>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.<br /><br />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.Janet P. Brookshttp://www.blogger.com/profile/02115855738959544965noreply@blogger.com0tag:blogger.com,1999:blog-1372543555119802725.post-49050436989888647642011-02-19T08:10:00.003-05:002011-02-19T08:21:25.017-05:00A new concept: rebuttable presumptions & wetlands agencies<a href="http://www.cga.ct.gov/2011/TOB/H/2011HB-05068-R01-HB.htm">House Bill 5068</a>, if approved, would establish a “rebuttable presumption” regarding wetlands permit approval of a dry hydrant in lakes, ponds and streams. The <a href="http://www.cga.ct.gov/2011/ENVdata/Tmy/2011HB-05068-R000131-BVFD,%20Jeffrey%20S.%20Bond-TMY.PDF">need</a>, as explained by Burlington volunteer firefighter Jeffrey Bond, is to facilitate access to water to fight fires who aren’t adept at filling out wetlands application and going through a multi-month process with municipal wetlands agencies. A dry hydrant, adds the <a href="http://www.cga.ct.gov/2011/ENVdata/Tmy/2011HB-05068-R000131-DEP-TMY.PDF">DEP</a>, involves the permanent installation of a non-pressurized pipe into a lake, pond or stream to provide water to fill a fire truck tank to be used in fire suppression. <a href="http://www.cga.ct.gov/2011/ENVdata/Tmy/2011HB-05068-R000131-Sen.%20Bye-TMY.PDF">Senator Beth Bye</a>, whose district includes Burlington, strongly supports this bill, but acknowledges the opposition of Conference of Connecticut Municipalities (CCM) to such a bill in 2009. The bill would “tilt the playing field” against wetlands agencies. Senator Bye believes that protecting public safety is a valid reason to do so.<br /><br /><i>Is this an example of a bill that a legislator marks “by request” for a constituent? See the previous blog entry. There’s no way for us to know, so we’ll continue to proceed as if this could indeed become enacted</i>.<br /><br />Here’s the proposed addition to the Inland Wetlands & Watercourses Act:<br /><br /><blockquote>There shall be a rebuttable presumption for the approval of any application for the installation of a dry hydrant in wetlands and watercourses. Such presumption may be rebutted by a finding that there is a feasible and prudent alternative access to a public water supply that has a less adverse impact on wetlands and watercourses.</blockquote><div><br /></div>DEP raises a good point: if the reason is for fire control, why not say so? The bill would allow any use of a dry hydrant to enjoy the considerable benefits of semi-automatic approval. Such as irrigation of playing fields by towns/school or lawns/gardens by landscapers/homeowners.<br /><br />Let’s be clear: a “rebuttable presumption” means that if somebody, other than the fire department applicant, doesn’t come up with information on the fire department’s access to a water supply, the location of the dry hydrant must be approved. The only other “somebody” in every wetlands application is the wetlands agency. As <a href="http://www.cga.ct.gov/2011/ENVdata/Tmy/2011HB-05068-R000131-Rivers%20Alliance%20of%20Connecticut,%20Margaret%20Miner-TMY.PDF">Rivers Alliance</a> notably pointed out, this is a shift in the burden of proof. In fact, I would add, this is the first instance in the almost-40 year history of the wetlands act that the agencies would have the burden of proof in order to carry out their protective duties under the Act and the only instance of difficulty getting a permit for dry hydrants. The wetlands agency would have to investigate whether alternate water supplies exist and then evaluate whether those supplies have less adverse impact.<br /><br />Why would wetlands agencies have superior knowledge of what access the fire department has to public water supplies? (Rivers Alliance points out that access to other water supplies should not be limited to public ones.)<br /><br /><i> Can’t that “burden” still be on the fire departments</i>? Why aren’t town engineers assisting fire departments fill out these applications? If the town doesn’t support the fire department with engineering resources to go through the application process, is there more reason to believe it would support the wetlands agency with that technical support? If the agency needs to hire an expert to make that evaluation, does it pass those expenses back to the “applicant,” the fire department? Maybe the town needs to get itself together and not tinker with the wetlands act.Janet P. Brookshttp://www.blogger.com/profile/02115855738959544965noreply@blogger.com1tag:blogger.com,1999:blog-1372543555119802725.post-60567388545878936132011-02-17T21:38:00.000-05:002011-02-17T21:39:56.005-05:00The opacity of the legislative processI've been reading through, weeding through a number of legislative bills to decide which to feature in this blog. Besides the criterion of wetlands I'm looking for bills that will have legs and get somewhere. Not so easy to determine. Not just because no one can predict what bills will gain political momentum and be voted into law. The General Assembly has its own signals for which bills are "for show." Perhaps you always knew this. It was news to me when Representative Linda Gentile, co-chair of the Planning & Development Committee of the General Assembly, spoke before the attorneys in the Planning & Zoning Section of the CT Bar Association two nights ago.<br /><br />The dialogue between members of the Bar section and Rep. Gentile began innocuously enough. When questioned by a land use attorney as to whether anyone screens the bills to remove the ones that solve non-existent problems (e.g., a bill to remove the requirement for public hearings with site plan approvals when no such requirement exists), she answered it with a twist: some bills are filed by legislators at the request of constituents which the legislator has no expectation will pass, and perhaps no inclination to pursue. The bill is given life, however brief, to show the legislator's attentiveness to constituent requests. But not to worry, Rep. Gentile, told us, the rest of them don't spend a lot of time on these bills. They are coded so that no one gets overly exercised. Somewhere the bill is marked "by request." That is the signal shall we say, to ignore the bill. That is, it is a signal to the legislators. I have not been able to find the "by request" designation on the Connecticut General Assembly's website which is an excellent tool for accessing the status of pending bills. She indicated another sign that a legislator is doing constituent work, meaning not pursuing the bill: when a legislator submits a letter to the chair of the committee copied to the constituent who requested it . . . a veritable kiss of death.<br /><br />The problem is the public doesn't know which bills are faux bills. They are scheduled for public hearing. Why? If a legislator requests it, she explained, it is hard to turn down the request as she may be seeking the same consideration in the future. So, advocates who are truly interested in the bill may get caught up in the drama of a public hearing only to find the actors mere facades. This may only be known in retrospect, if at all.<br /><br />For the next few weeks I will highlight some of the bills in which the content would bring about a change if passed. Will I be wasting your time on bills with no trajectory? Well, at least I won't be intentionally wasting your time.Janet P. Brookshttp://www.blogger.com/profile/02115855738959544965noreply@blogger.com0tag:blogger.com,1999:blog-1372543555119802725.post-80605439032005480582011-02-05T09:50:00.002-05:002011-02-05T09:52:24.849-05:00Consolidating municipal wetlands agencies into districts - an idea whose time has come?DEP has recently responded to an inquiry from a wetlands agent in Fairfield County about the legality of establishing a multi-town wetlands agency. The catalyst came in the form of a warning from the chief elected official to the agent to be well versed in the topic of consolidation, given the upcoming budget struggles. The wetlands act has provided authority for multi-town districts since its passage in 1972 with this wording in General Statutes § 22a-42 (e):<br /><br /><span style="font-family:arial;">"Any municipality, pursuant to ordinance, may act through the board or commission authorized in subsection (c) of this section to join with any other municipalities in the formation of a district for the regulation of activities affect the wetlands and watercourses within such district."<br /><br /></span>. . . and no municipality has taken the opportunity to protect its resources in that way. Too difficult to figure out how to appoint fewer people to manage multi-town resources? It can't be more difficult than establishing regional schools. We don't manage our other natural resources or environmental issues on a town-by-town basis: air, hazardous waste, pesticides. Will it take the current recession to put a chink in the mote of home rule?<br /><br />I'd like to envision fewer wetlands agencies in a number of consolidated districts, based on watersheds, so that there could be meaningful, consistent policy implemented across town lines. With fewer commissions there would be a need for fewer commission members. The competition would be so stiff to get on a commission that candidates would pledge to complete DEP training and reenroll for Segment II (legal updates) every year in order to be appointed. By then, DEP would have many opportunities for training webinars and DVDs, in addition to the immutable core of live training. The preapplication process would be heavily relied on and professional handled, so that applicants wouldn't waste time in lengthy, unproductive hearings, but would receive clear signals that they could plan projects around. The few municipal holdouts would be gazing, with such longing, at the successful and fiscally prudent regulation of wetlands and watercourses that they would eventually petition to join a district.<br /><br />In my lifetime?Janet P. Brookshttp://www.blogger.com/profile/02115855738959544965noreply@blogger.com0tag:blogger.com,1999:blog-1372543555119802725.post-7039238834057830312011-02-04T12:53:00.002-05:002011-02-04T15:16:52.309-05:00Don't miss the free webinar on vegetated riparian corridorsThanks to the good folks at <a href="http://clear.uconn.edu/">CLEAR</a>, (the Center for Land Use Education and Research), you can participate in a free hour-long webinar on riparian corridors, next Tuesday, February 8th from 2-3pm. Here is CLEAR's description of the course from its website:<br /><br /><span style="font-family:arial;">"Riparian, or streamside, corridors provide a host of environmental benefits, from erosion control and wildlife habitat to water quality protection. What is the state of riparian corridors in Connecticut, and what options are there for addressing riparian corridor protection?<br /></span><br /><span style="font-family:arial;">This webinar will focus on a recently completed CLEAR study showing changes to 100 foot and 300 foot riparian corridor areas during the 21-year period from 1985 to 2006. We will review statewide, watershed, and town-level data, and demonstrate the use of the project website. We will also present information on the functions and values of riparian corridors of various widths, the relationship between wetlands and riparian corridors, and the need for local commissions, land trusts and other conservation groups to work together on the conservation of these critical areas."</span><br /><span style="font-family:arial;"><br /></span>The timing is just right to consider Senator Meyer's bill on vegetation in riparian corridors, <a href="http://www.cga.ct.gov/2011/TOB/S/2011SB-00832-R00-SB.htm">Bill # 832</a>, the next day when the Environment Committee of the General Assembly holds its public hearing.<br /><br />Riparian corridors is the topic that will kick-off the 2011 monthly webinar series. The other topics include: affordable housing, rain gardens, google maps mashups, brownfields, global positioning systems (GPS), permeable pavements for stormwater control, farm-friendly plans and regulations, and CLEAR web tools.<br /><br />Sign-up for the riparian corridor webinar on CLEAR's website by clicking <a href="http://clear.uconn.edu/webinars/CLEARseries/">here</a>.<br /><br />And if you like the ease and the format of a webinar, let DEP know that you'd like webinars to be part of its training for wetlands commission members.Janet P. Brookshttp://www.blogger.com/profile/02115855738959544965noreply@blogger.com0