IWWC's Morgan Estates Decision

When the East Haddam Inland Wetland and Watercourse Commission (IWWC) voted to approve the development application known as Morgan Estates in the Landing Hill area, three members voted. In doing so, they put the idea of a preserve on the site in jeopardy. Preserve Landing Hill (PLH) is organized to promote the idea of preserves throughout the between-the-villages area.

The commission consists of seven members total, two of whom are alternates. That means there are five regular members. Thus three is the minimum needed for a legal vote. This is called a quorum. Despite tens of thousands of dollars spent on information critical to the evaluation of the proposal, three public hearings, two regular meetings and two work sessions, the commission discussed, evaluated and voted on this project with the least possible number of commissioners. Significant expertise available from at least two members of the commission, Wendy Goodfriend and Bryan Goff, was not present in any of the commission work sessions.

It is not unreasonable to ask if the commission was fully functional in its actions given the importance of this application, the opportunity the parcel represents as an educational, nature-oriented preserve and the level of public interest surrounding it. If the answer to that question is no, there is the deeper implication that perhaps the town should consider reconstituting the IWWC. For those in favor of preserves in the Landing Hill area, the decision invites the possibility of an appeal to the state superior court in order to scrutinize the decision making process and help guide the exiting process toward one that is more conducive to preserving the Landing Hill area.

The application procedure for this project started around the first of the year with paperwork submitted by the owners of the property, Alan Hanks of East Haddam, and Jeffery Becker (Applicant) of Avon. After review with town staff, and meeting needed requirements for consideration, the Applicants were granted a place on the agenda of one of the IWWC's regular meetings in February. Immediately prior to that, a group of neighbors filed for intervenor status (Intervenors) in the proceedings and filed a petition requesting a public hearing on the matter. Attempts to engage the Applicant in talks about preserving the property had been rebuffed.

At the regular meeting the IWWC announced that the Applicant, represented by Mr. Hanks and engineer, Roger Nemergut, would not be able to present its proposal as planned. Instead, the commission said they would hold a public hearing; the Applicant would have to wait to until then to make his presentation.

Mr. Hanks was surprised by the fact that he could not make his presentation. Even though he had been in communication with the town Land Use office, submitting paperwork and preparing for the meeting, he apparently did not know that he would be delayed on this particular evening. The commission staff member, land use official Jim Ventres, asserted that notwithstanding the petition for a public hearing submitted by the Intervenors, it was going to be his office's recommendation to hold a public hearing all along.

Mr. Hanks was angry and upon leaving, while still on town property, verbally accosted the Intervenors. It seemed to bystanders that, even though anyone has the right to participate in the review process, there would be a hostile environment in which it would play out. For members of the Intervenors, this became even more apparent, telling PLH, they felt town staff and members of the commission viewed them as adversaries, at times getting angry over procedural issues, offering what appeared to be misleading guidance, and generally withholding key information about how to participate in the process. For example, Intervenors claim staff member Jim Ventres repeatedly told the group that there was no formal procedural requirement to gain the status of an intervenor, yet they discovered at the last possible moment that a notarized letter is required to officially intervene in the process.

The application process required three public hearings over four months. During that process, the Intervenors spent nearly $10,000 on expert witnesses including environmental consultants REMA Ecological Services and the engineering firm Meehan & Goodin, PC. The Intervenors also retained attorney Paul Geraghty.

The Applicant relied upon their engineer Roger Nemergut, surveyor Robert Weaver, soils scientist Richard Snarsky, ecologist Jodie Chase and herpetologist Anton Leenders. There were multiple revisions to the proposed design, as well as field inspections and various reports.

The Applicant refused the Intervenors access to the land, so only their experts provided data from the site itself. The commission relied on the Applicant's information to make their decision. The Applicant spent many thousands of dollars on the design and responding to input received during the process. PLH estimates that the Applicant spent over $50,000 on design and expert advice.

It should be noted that, despite the IWWC decision's negative impact on efforts to preserve the property, there were multiple improvements made to the design that otherwise would have probably gone unaddressed by the routine review process. Clearly the efforts and expenditures of the Intervenors improved the process.

IWWC commission members Randy Dill, Mary Augustiny, Dan Jahne, Wendy Goodfriend and Jennifer Burton-Reeves attended most of the hearings, as did Jim Ventres. Commissioner Bryan Goff did not attend any of the hearings, nor any of the work sessions. He did attend the meeting at which the commission approved the application, properly abstaining from the vote. The Town invested heavily in support services, engaging consultants, Nathan Jacobson and Associates and environmental consultant Penelope Sharpe for technical reviews and even having town attorney Eric Knapp attend the first public hearing.

Only commissioners Dill, Augustiny and Jahne attended any of the subsequent work sessions leading up to the vote.

With all of the time, money and resources invested in the process by all parties, why weren't all the commission members present? Although three members voting may be legal, it seems to reflect a somewhat low regard for the importance of this project. To advocates of a preserve on the site, this is discomforting. Commissioner Goodfriend, someone with significant expertise in environmental matters, who criticized aspects of the Intervenors's testimony during the third public hearing, didn't attend work sessions, nor did she vote.

In the decision, the commission preferred to limit themselves to the review of activities within the Upland Review areas established by the regulations. The Intervenors's attorney, Geraghty, presented the commission with a memorandum outlining the legal basis for their responsibility to look at the effects of the proposed development on the adjacent wetlands even when it was outside of the Upland Review areas. Yet, during the work session reviews, the constraints of the Upland Review as a guideline for understanding their charge was emphasized by Ventres. The commission accepted his characterization of their responsibility.

One pivotal point, the interpretation of filtration devices versus infiltration devices, was determined by Ventres. Even though a licensed, professional engineer, Marc Goodin, had recommended the use of infiltration criteria, it was overruled by Ventres.

Even though the Intervenors had presented reams of information, many items were deferred to PZC, and the rest overlooked or explained away. The commission's stated approach to the review was to look at everything submitted, item by item. Ventres compiled the list of review items and asserted it to be complete. This became the underlying assumption of the review: that all of the questions and concerns submitted by the Intervenors had been or were going to be reviewed and evaluated. It appears however this did not happen.

One example is the critical issue of stream erosion, something described in a report submitted by the Intervenor's environmental expert, REMA. REMA pointed out that it was incumbent under current regulations for the Applicant to review the bank erosion resulting from the increased run-off the development would create. Although the Applicant's engineer looked at and designed for peak flow coming off the property, REMA noted that they did not look at the long term affect of the overall increased flow in the stream leading to the Salmon Cove. The term used for this is 'bankful events', those times that the stream is handling its maximum capacity for flow. REMA points out that the number of bankful events increases with development, that regulation requires this be addressed by the developer, and that it wasn't addressed by the application. It appears from listening to the IWWC work session discussions and reading the IWWC decision, that the commission did not address this issue.

Until fully analyzed, it is impossible to evaluate the adequacy of the IWWC's review of the issues presented by the Intervenors. It seems possible that they did not address all of them. Of the issues addressed, each was systematically dismissed so that ultimately an approval could be made. Unless this decision, and the means by which it was reached, is appealed in state superior court, there is no recourse. This point is of critical importance to the community. Unless challenged, the town appears to continue to be at risk because of shortcomings in the process.

It remains to be seen whether concerned citizens will appeal the decision. PLH supports such an effort and will provide financial support for an appeal. Such an effort involves enormous cost and emotional toll. Concerned citizens are invited to offer support through this blog. Financial donations are also invited BY CLICKING ON THE DONATE BUTTON.