Legal Brief: P&Z Appeal, Morgan Estates

DOCKET NO.: MMX-CV-4010472-S

Plaintiffs

VS.

EAST HADDAM P&Z ET. AL

November 6, 2009

BRIEF

Allen Hanks and Jeffery Becker (Applicant) submitted an application for subdivision (Application) for property at 30 Orchard Road, East Haddam, Connecticut, Assessor’s Map 36, Lot 35, on January 6, 2009. Public hearings were held by the East Haddam Planning and Zoning Commission (PZC) on February 10, 2009, March 10, 2009 and March 24, 2009. At the February 10, 2009 public hearing, notice of intervention was received by the PZC. Plaintiff is an abutting landowner and was one of several parties included on the notice of intervention. Further discussion of the Application took place during regular PZC meetings on April 14, 2009 and April 28, 2009. PZC finalized its discussion and voted to approve the application at a regular meeting on May 12, 2009. A formal letter of approval (Approval) was issued by the PZC on May 14, 2009.
Plaintiff filed an appeal to the Connecticut Superior Court in a complaint dated May 27, 2009 naming PZC, PZC Commissioner Cary Brownell and Allen Hanks as Defendants. PZC Commissioner Cary Brownell is non-appearing.
The complaint consists of two elements.
a. Failure to Enforce East Haddam Subdivision Regulation 4.08 - Section 4.08 Passive Solar Energy Techniques of the East Haddam Subdivision Regulations (Regulations) was ignored by Applicant. Plaintiff notified Defendants via certified mail on May 6, 2009 prior to Approval of the Application that failure to meet the requirements of Section 4.08 represented grounds for appeal. PZC subsequently approved the Application with conditions.
b. Failure to Enforce East Haddam Section 4.04 Certification by Town Sanitarian; Approval Based on False Information of Material Importance -. PZC state in their Approval that percolation tests have been witnessed by the Town Sanitarian, an aspect of the Chatham Health District (CHD). Information was provided during the hearing process establishing the fact that the CHD did not witness the percolation test.

I. Return of Record
Plaintiff responds to the Court’s request for acknowledgment of the completion of the return of record. The record is deficient in that it does not include essential audio recordings of the PZC hearings or copies of email correspondence between PZC, town staff, Town Sanitarian and CHD. Plaintiff respectfully requests copies of all audio recordings and all email correspondence between the Town of East Haddam, the Town Sanitarian, and the CHD.

II. Non Appearance
Plaintiff notes Defendant Cary Brownell, the Commissioner of the PZC, is non-appearing and respectfully requests Court action to require said defendant’s appearance.

III. Issues in the Case
a. Failure to Enforce East Haddam Subdivision Regulation 4.08 –
i. At issue is whether conformance to the Regulations is a requirement for the approval of the Application.
ii. At issue is the responsibility of the PZC to uphold and enforce existing subdivision regulations.
1. Ancillary to this issue is the question of whether the PZC has the authority to enforce regulations through the use of specific conditions associated with approval of the Application.
a. Further to this issue is the adequacy of the condition and its consistency with the intent of the regulation and the underlying law that enables and authorizes the regulation.
b. Failure to Enforce East Haddam Section 4.04 Certification by Town Sanitarian; Approval Based on False Information of Material Importance -
i. At issue is whether conformance to the Regulations is a requirement for the approval of the Application.
ii. At issue is the responsibility of the PZC to uphold and enforce existing subdivision regulations.
iii. At issue is whether it is PZC’s responsibility to ensure that the proposed lots are capable of sustaining subsurface septic systems.
1. Further to this issue is whether the witnessing of percolation tests, a pivotal determinant in the adequacy of the ground to support subsurface septic systems, by the town or an otherwise independent witness unencumbered by a fiscal relationship with the Applicant, is a necessary ingredient to protecting the public and ensuring that proposed lots are capable of supporting subsurface septic systems.
iv. At issue is the question of whether the decision made by the PZC is able to be upheld upon scrutiny given the fact that it is partly and explicitly based on false information pertaining to the witnessing of percolation tests.
1. Further is the relationship between the PZC, the town sanitarian, and CHD.
a. PZC relied upon CHD to evaluate the Application with regard to the public health laws. Conversely, CHD relied upon PZC for certain issues purportedly not within the scope of its duties. Despite the inter-reliance of these parties to make its decisions, neither party properly addressed the issues; comprehensive protection of the public did not result.
b. At issue is the responsibility of CHD to avail itself of pertinent expert opinion offered during the PZC hearing process. By its own admission, CHD was unaware of any evidence, testimony or opinions offered during the PZC hearings other than information supplied with the Application.
i. At issue is whether the public’s right to participate in the hearing process is served if CHD does not avail itself of expert opinion developed and offered during the PZC hearing process.
1. Further is the question does PZC have the duty to interpret CHD’s report in light of information it has received but which CHD has failed or refused to consider.
ii. CHD does not offer its own venue for public input on applications it reviews related to the PZC hearing process implying a failure of due process when it does not avail itself of the information developed during the process.

IV. Analysis
a. Issue I – Passive Solar
The Application as submitted did not include an evaluation of passive solar techniques. The conditions provided with the Approval are insufficient to cure the Application’s failure to provide a demonstration of such evaluation. East Haddam Subdivision Regulation 4.08, and underlying state law, Connecticut General Statute (CGS) Section 8-25 subsection (b) require passive solar techniques be evaluated in developing subdivision plans. There is no evidence that the Applicant evaluated passive solar techniques with respect to this Application and therefore the PZC could not have considered this necessary information. “In making a decision on an application, the commission shall consider information submitted by the applicant under subsection (b) of section 8-25 concerning passive solar energy techniques.” CGS Sec. 8-26(b)
Furthermore, the PZC acknowledges that the required evaluation was not part of the Application. On page 10 of the Approval, PZC states: “At the time of each site plan submitted before the zoning office for a house permit, the builder/owner shall report if passive solar techniques have been considered and such evidence is to be submitted on the site plan.” This attempt to cure the lack of a comprehensive evaluation and application of passive solar techniques during subdivision layout misses the intent of Section 4.08 and CGS 8-25(b). The regulation and statute require the consideration of passive solar while developing the subdivision plan. The purpose of Section 4.08 and CGS 8-25(b) is to require a developer to consider passive solar techniques at the stage in which the interrelationship of the individual lots is emerging as it impacts: “(1) house orientations; (2) street and lot layout; (3) vegetation; (4) natural and man-made topographical features; and (5) protection of solar access within the development.” That stage begins with and runs concurrent with the subdivision layout effort that necessarily considers multiple design issues.
Passive solar techniques include the orientation of building fenestration toward the south where solar energy is available during the cooler months when supplementary heating is required by a building. In Connecticut, the sun is low in the sky during the winter months and its rays are thus better suited to passing through windows and other types of translucent glazing at that time because the angle between the rays and the surface approaches the normal, a line perpendicular with the surface. The angle of incidence is measured between the ray of light and the normal. Less solar energy is reflected with a low angle of incidence. During the summer, the sun is higher in the sky resulting in a higher angle of incidence and more reflection off south facing windows. Shading can also be used to prevent solar energy from penetrating south facing windows during the summer when it is not needed – offering the benefit of winter heat without additional summer cooling burden. Very little solar energy is available in the morning or late afternoon in the winter on the east and west sides of a building as the sun rises and sets quite a bit south of east and west respectfully. During the summer months, a great deal of solar energy is available on the east and west sides of a building as the sun’s rays strike windows in these areas with lower incidence. This heat is not desirable and contributes to overheating and air conditioning loads. Good passive solar design precludes fenestration on these facades reducing cooling needs in the summer and lowering heating loss in the winter. The north side of a building provides useful light, but no useful thermal heat.
Thus, it is only the southerly face of the building that is able to take advantage of passive solar energy during the heating months. The specific orientation of building fenestration toward the south is the primary technique of passive solar underlying the opportunities available for consideration at the subdivision layout stage of design. Moreover, the shape of the building itself is a valid consideration when seeking to optimize passive solar techniques. For example, maximizing south-facing wall area and minimizing all other exposures is a natural corollary to the design effort in which, for example, the aspect ratio – length in relation to width – and the orientation of the long axis of the building, are pertinent.
The opportunities to create building lots that will accommodate optimally south facing building facades occur as the lots are created. The lot configurations impact the ability to site buildings at the north end of the property providing a cleared area to the south upon which future development would not encroach and impact solar access. Subdivision layout also provides the opportunity to develop coordinated rules for protecting solar access for all lots in the subdivision through effective individual lot development, building design, and conditions such as covenants associated with the deeds of newly created lots. During subdivision layout, the areas to be cleared of trees are proposed and accepted by the land use commission, so consideration of solar access with regard to existing trees needs to occur at this time. Street and driveway configuration, another function of the subdivision layout, is determined and largely controls the subsequent orientation of future buildings on the lots. All of these elements are worked out in concert with other demands on the subdivision design such as septic and well placement, conservation areas, drainage systems, swales, rain gardens, property set-backs, required building square, other zoning issues, and public health code and state design guidelines for separation distances between the various elements.
Passive solar techniques are ineffective and of no value if the underlying lot configuration is predetermined such that protected solar access or proper building location or orientation is precluded. These low cost energy savings techniques are then fatally disadvantaged as there would be no benefit to their inclusion. Further to this example is the fact that existing solar financial rebates are highly dependent on the amount and degree of solar access available to a solar device. Devices with greater solar access receive larger rebates.
The Application approved by PZC is characterized by significant constraints on any future changes to the placement, size or shape of the proposed buildings. Ample evidence of the so-called tightness of the site, a result of the wetness of the land upon which the subdivision is proposed and the marginal quality of the soils to accommodate the development, is present in the record. The condition imposed by the PZC in its approval of the Application does not remedy the absence of passive solar consideration during the subdivision layout. Moreover, numerous conditions imposed by both the Inland Wetlands and Watercourses Commission and the PZC constrain future changes to the subdivision layout to an extreme.
The condition imposed by the PZC, intended to remedy the passive solar non-conformance, requires builders, who may be entirely different entities from the developer, to somehow prove consideration of passive solar techniques during the subsequent lot development and building design stage. Yet Section 4.08 clearly states that it is the Applicant that is affected because of the controlling nature of the subdivision layout and the approval process thereof. “The applicant shall demonstrate to the Commission that they have considered, in developing the plan, using passive solar energy techniques.” The condition imposed by PZC in its Approval requires conformance at a stage of the building process after the development of the subdivision plan. This subsequent stage is entirely subject to the constraints developed on the site as a condition of approval of the subdivision plan.
After approval, the subdivision design is inextricably entwined with the other controlling issues of drainage, septic, water, clearing, etc, named above. Changes to these controlling aspects would incur substantial economic penalties for revisions after the fact, including the enormous financial risk of having to reapply for subdivision plan approval. These revision costs would be inappropriately attributed to the application of passive solar techniques.
The Approval of the Application absent passive solar consideration severely limits and may even render passive solar techniques completely uneconomic and unusable during subsequent lot development and building design. Specific to the Application is the issue of the so-called tightness of the plan, referred to numerous times in the record, and the difficulty of moving or changing the shape of the proposed buildings that virtually eliminates the potential for passive solar application. Out of seven lots proposed, six of the houses are oriented with the long axis running north and south, an orientation that encourages excess heat gain in the summer and is not optimal for passive solar heating gain. The one proposed building having a better orientation is situated very close to the southern edge of the lot and its existing, mature tree line, thus offering little potential for solar gain.
The PZC condition of requiring after-the-fact evidence of passive solar techniques at the level of lot development and house design completely misses the intent of Section 4.08 and CGS 8-25(b) in that it does not remedy the obvious preclusion of passive solar inherent in the approved subdivision plan. Section 4.08 and CGS 8-25(b) strive to ensure the potential for these techniques. It is impossible to optimally apply passive solar techniques if the major elements of the subdivision are predetermined, as in this case.
In Perry Brothers v. Canton Zoning Commission, Superior Court, judicial district of Hartford, Docket No. CV 90382078, 5 Conn. L. Rptr. 650, the procedural background underlying the appeal indicated that the consequence of a condition not being satisfied was to have the approval withdrawn, not modified. The planning commission granted conditional approval of a site plan subject to the subsequent approval of a special exception. However, when the special exception was denied, the commission withdrew its approval. In the case of the Application, the Approval is moot if it is based on the condition demonstrating consideration of passive solar techniques that can not be carried out.
Section 1.02 Purpose of the Regulations states “These Regulations are adopted pursuant to the authority granted in Chapter 126, Section 13a-71 of Chapter 238, and Section 7-120 of Chapter 97, of the General Statutes of the State of Connecticut, as amended. It is declared to be the policy of the Commission to consider land subdivision as part of a plan for the orderly, efficient and economical development of the Town so as to further the general welfare and prosperity of its people. Accordingly, it is the purpose of these Regulations to insure that: ….provisions shall be made for energy-efficient patterns of development and land use, the use of solar and other renewable forms of energy, and energy conservation.” The Approval does not create provisions for the use of solar energy and is inconsistent with the purpose of the Regulations and the explicit policy of the PZC.
Section 1.10 Adoption of a Temporary Moratorium, (a) Purpose, “…East Haddam has almost 20,000 acres undeveloped and uncommitted acres of vacant land still available for use. East Haddam will be adversely impacted if these areas are not developed in accordance with current policies intended to minimize topographic disturbances, protect surface and subsurface waters, preserve wildlife habitats, avoid exceeding the capacity of the existing and proposed municipal infrastructure, and avoid sprawl.” These statements confirm and strengthen the explicit policy of the Town of East Haddam and its PZC to provide for the use of solar and other renewable forms of energy, and energy conservation, and that harm in the form of adverse impact to the Town of East Haddam and the general welfare and prosperity of its people will occur if areas are not developed in accordance with current policies.
Section 3.01 Requirement of Approval of Subdivision Plan states “Application for approval of a plan of subdivision shall be made to the Commission pursuant to Section 8-26 of Chapter 126 of the Connecticut General Statutes, as amended.” Subsection a. Subdivision Plan Approved and the Sale of Lots states “All plans for the subdivision or re-subdivision of land must be submitted to the Commission for approval and no lot resulting from or affected by the subdivision or re-subdivision of any tract or parcel of land shall be sold or offered for sale or use for building development and no Certificate of Zoning Compliance (Zoning Permit) for any use, nor any building permit for the erection or enlargement of any building on such lot shall be granted without the prior approval of the subdivision or re-subdivision plan, or any amendment thereof, by the Commission, and the filing of the endorsed Final Subdivision Plan in the Office of the Town Clerk.” With these regulations, the PZC establishes subdivision plans as the means for establishing compliance with town regulations. The regulations further establish the PZC as the authority for evaluating the conformance of subdivision plans with the regulations.
Section 3.04, Subsection xx. states “It is the burden of the applicant to submit a complete application, and to demonstrate compliance with all criteria and requirement of these Regulations and, accordingly, the applicant may submit, or the Commission may require, such additional reports or information as may be required to satisfy that burden. Any application found to be incomplete may be denied by the Commission without prejudice to a future, complete application.” This section grants the PZC the authority to withhold approval of a non-conforming plan. Given the PZC’s explicit policy to protect the welfare of the town including the provision of the use of solar energy, the Regulations promulgated consistent with this policy, and the PZC’s duty to review subdivision applications for compliance with the Regulations, Plaintiff asserts that the PZC has failed its duty with the approval of the Application.
Marshall Sonn v. Planning Commission of City of Bristol 374A.2d159. 172, Conn 156, regulations covering subdivision of land must conform to statutory requirements. Section 4.08 conforms to the underlying statute. It is, in fact, word for word. In Beach v. Planning and Zoning commission of Town of Milford 103 A2d814, 141, Conn. 79, the court ruled against the use of discretion by the commission in the absence of a controlling regulation in favor of discretion controlled by fixed standards offered by regulations. In that case, the applicant would have been deprived of due process of law according to the court. In this case, it is the public that is deprived due process of law when the PZC rules in favor of the Application despite the Application’s non-conformance with existing regulations. La Voie, State ex rel. v. Building Commission of town of Trumbull 65 A.2d165, 135 Conn 415, the court ruled “commission was without power to approve revised map of lots for residential use, which did not comply with zoning regulations…” Correspondingly, in Marshall Sonn v. Bristol, the court ruled subdivision standards must be controlled by fixed standards. Replacing conformance to Section 4.08 with a condition that does not meet the intent of the underlying, authorizing statute constitutes the absence of a fixed standard.
Plaintiff argues that ‘shall’ in Section 4.08 should be read as required by the Town of East Haddam. Op. Attorney General, no. 86-054 Conn. Op. Atty. Gen. 207, 1986 WL289119, “the word ‘shall’ mandates the inclusion within those regulations that passive solar energy techniques be considered in a subdivision plan.” The legislative intent of CGS is clarified as of October 1, 2009.
“Section 1. Subsection (b) of section 8-25 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2009):
(b) The regulations adopted under subsection (a) of this section shall also encourage require energy-efficient patterns of development and land use, the use of solar and other renewable forms of energy, and energy conservation. The regulations shall require any person submitting a plan for a subdivision to the commission under subsection (a) of this section to demonstrate to the commission submit an analysis to the commission demonstrating that such person has considered used, in developing the plan, using passive solar energy techniques which that would not significantly increase the cost of the housing to the buyer, after tax credits, subsidies and exemptions, and that such passive solar energy techniques maximize solar heat gain, minimize heat loss and provide thermal storage within a building during the heating season and minimum heat gain during the cooling season. As used in this subsection and section 8-2, passive solar energy techniques mean site design techniques which maximize solar heat gain, minimize heat loss and provide thermal storage within a building during the heating season and minimize heat gain and provide for natural ventilation during the cooling season. The site design techniques shall include, but not be limited to: (1) House orientation; (2) street and lot layout; (3) vegetation; (4) natural and man-made topographical features; and (5) protection of solar access within the development.
Based on the Op. Atty. Gen 207 and the clear intent of the CGS 8-25(b), Applicant’s subdivision plan must include facts demonstrating he has considered passive solar energy techniques. The facts in this particular case clearly show the subdivision plan did not demonstrate the consideration of passive solar energy techniques. In Pelliccione v. Planning and Zoning Commission of Town of Ridgefield 780 A.2d185, 64 Conn App. 320, the court denied certification, upholding a town subdivision regulation as having a standard that afforded a valid basis for planning and zoning commission to use in passing on propriety of an application and it did not leave the fate of such applications to subjective views of commission members; regulation provided that applicant was required to demonstrate certain matters. We argue the similarity of Pelliccione v. Planning with requirements of Section 4.08 in question.
Given that the Application was still deemed successful by the PZC, it appears that the approval was based on the subjective views of the PZC through its use of a condition to try to justify the non-enforcement of Section 4.08.
Krawski v. Planning and Zoning Commission of Town of South Windsor 575 A.2d1039, 21 Conn. App. 667 upheld, by reversing the lower court’s ruling, the authority of the zoning board or commission to decide, within prescribed limits and consistent with exercise of its legal discretion, whether a particular section of zoning regulations applies to given situation and the manner in which it does apply. In meeting this duty, the commission is acting “in administrative capacity, rather than legislative capacity.” Sowin Associates v. Planning and Zoning commission of Town of South Windsor 580 A.2d91, 23 Conn App. 370. Also from Sowin v. Planning, “Zoning commission deciding whether to approve application for residential subdivision in residential zone could not weigh offsite traffic concerns, municipal services required by development, property values, or general harmony of district and could not look beyond question whether plan satisfied town subdivision regulations.” Plaintiff argues that it is within the authority of the PZC to determine if the Application meets the regulations and in so doing, PZC is not authorized to act legislatively nor beyond the question of Regulation satisfaction.
Commissions have the authority to enact subdivision regulations, but such regulations must derive their authority from General Statutes and may not conflict with such statutes. PZC appears to have acted legislatively in crafting the condition on page 10 of the Approval. Moreover, given that the intent of CGS 8-25(b) is not met by the condition, it is neither proper for PZC to approve with condition nor adequate in meeting the intent of the statute that provides the authority vested in Section 4.08.
“The requirement that regulations contain known and fixed standards to be applied to all cases of a like nature reduces the likelihood of an administrative body, unsure of its prerogative, acting in a capricious manner in the exercise of its authority. Marshall Sonn v. Bristol. If the reasons for not looking at passive solar techniques were based on monetary values, the court disallowed this criterion in Damick v. Planning & Zoning Commission, 158 Conn. 78, 83, 256A.2d428 which also relied on Marshall Sonn v. Bristol. “The maximum possible enrichment of a particular developer is not the controlling purpose of zoning.”
With regard to the Approval’s condition requiring a builder/owner to comply, “At the time of each site plan submitted before the zoning office for a house permit, the builder/owner shall report if passive solar techniques have been considered”, Plaintiff argues that CGS 8-25(b) does not confer upon PZC the authority to require such compliance. Buttermilk Farms, LLC v. Planning and Zoning Commission of Town of Plymouth 973 A.2d64292 Conn 317. Moreover, the condition rises to the level of special legislation for which PZC is without authority. Beach, et al.

b. Issue 2 – Percolation Tests
Section 4.04 Certification by Town Sanitarian of the East Haddam Subdivision Regulations states “All percolation tests and test pits shall be witnessed by the Town Sanitarian and shall be specified on all subdivision plans.” This information is not present in the Application. Moreover, the Plaintiff presented evidence to the PZC that the Town Sanitarian (CHD) had not witnessed the percolation tests.
Significant discussion took place among members of PZC, the public, the Applicant and both the Applicant’s and the Town’s experts with regard to the tight nature of the subdivision layout, concerns about high water tables, questions about aspects of the state storm water drainage guidelines and other aspects of industry accepted best management practices, as well as the integrity of the field notes available from the Town Sanitarian with respect to the witnessing of testing. The materiality of the question of ground water, percolation rates, public health issues and design criteria, given the admittedly wet nature of the property, is well established in the record.
Moreover, substantial discussion among members of PZC occurred with regard to the respective roles of the PZC and CHD. The town attorney was adamant about constraints to the PZC’s authority relative to CHD. However, Section 4.03 land With Limitations for Development, subsection (b) Soils with significant limitations for the installation of septic tank absorption fields, which is the pertinent section for the Application as the subject property comprises Paxton, Montauk and Woodbridge soils, states “The soils that are categorized as having significant limitations for the installation of septic tank absorption fields are limited by steep slopes (15-45%), seasonal high water table, stoniness, shallow depth to bedrock and slow to very slow permeability to substratum. Within each major soil grouping, there may be found, upon field investigation "pockets" of soils with slight to moderate limitations. Due to the varied range of slope in each unit (15-45%), there may be areas where the slope is acceptable. With careful testing, design and installation, a septic system can be successfully constructed subject to the provisions of the State Health Code.” This section makes clear that it is the Regulations that provide constraining criteria for which the PZC is responsible. The provisions of the State Health Code are, thus, not determining, but rather an additional criteria that the PZC must recognize. Repeated guidance by the town attorney, however, contradicted this authority vested in PZC, telling them to rely solely on CHD’s evaluation of the Application’s compliance with the State Public Health Code. PZC’s refusal to uphold its authority, in addition to relying on incorrect information and thus failing to ensure independent witnessing of critical percolation tests designed to determine if the soil and ground are capable of supporting the proposed development, results in a failure to protect the abutting property owners and the public health in general.
Section 1.02 Purpose of the Regulations is clear in that it is the policy of the PZC to protect health and public safety. “Accordingly, it is the purpose of these Regulations to insure that: Land to be subdivided shall be of such character that it can be used for building purposes without danger to health or the public safety; proper provision shall be made for water supply, surface drainage and sanitary sewerage…”
Sheet 8 of 9, Soil Test Results & Erosion and Sediment Control Notes, Nemergut Consulting, February 8, 2008 revised 2/26/09 indicates fifteen percolation tests, none of which are certified as witnessed by the Town Sanitarian. Section 4.04 is the regulation that establishes that aspect of the PZC subdivision policy requiring witnessing of percolation tests by the Town Sanitarian. PZC approved the Application notwithstanding the absence of conformance with this regulation and despite being informed of this deficiency during the public hearings. There is no statutory basis for this approval. “There must be statutory authority for action taken by a planning commission in the exercise of its planning power, in the control of subdivision of land. Nicoli v. Planning and Zoning Commission of Town of Easton 368 A.2d24, 171, Conn.89.
In a separate meeting with CHD, Plaintiff was informed that the CHD was not aware of any of the expert testimony or any other aspect of the public hearing process. Despite interveners’ expenditure of some $15,000 for independent expert opinions from soil scientists and a professional engineer, CHD did not avail themselves of any of this information thus denying interveners and the public due process in CHD’s deliberations.

V. Conclusion
“In exercising its function of approving or disapproving a subdivision plan, planning board acts in an administrative capacity, and in passing upon a plan its action is controlled by regulations that it has on discretion but to approve a subdivision conforming to the regulations.” Lanbein v. Planning Board of City of Stamford 146 A.2d412, 145 Conn 674. “When planning commission grants or denies subdivision application it is acting in administrative capacity and it must approve plan if it complies with applicable regulations.” Weatherly v. Town Plan and Zoning Commission of Town of Fairfield 579 A.2d94,23 Conn App. 115. Under the Constitution of the United States, Plaintiff and the public are guaranteed equal protection under the law. If the PZC must approve a plan if it complies with applicable regulations, then it follows that the Application, in not meeting the Regulations, must be denied.
In LePage Homes, Inc. v. Planning and Zoning Commission of Town of Stonington 812 A.2d156, 74 Conn. App 340, the Appellate Court upheld the planning and zoning commission’s denial of a subdivision application containing an inherent violation of the subdivision regulations. Plaintiff argues two inherent violations; specifically the Application is non-conforming with Sections 4.04 and 4.08 of the Regulations.
In Grigerik v. Sharpe, the Connecticut Supreme Court upheld the decision of the trial court awarding negligence in the case of an engineering firm that failed to have percolation tests witnessed by the Town Sanitarian. Grigerik v. Sharpe 247, 721 A.2d526 Conn. 293. We believe there is clear precedence for the materiality of the argument that the Approval is without merit in the absence of the proper witnessing of percolation tests.
Plaintiff argues this case is supported by copious evidence in the record and substantial case law precedence. The integrity of the process is essential to serving the intent of the Regulations and statutes of the State of Connecticut. The process leading to the Approval was deficient in that the intent of these regulations and laws, as well as the health and safety of the abutting landowners and the public, was not served. It is critical to public health and safety that the information associated with percolation testing be held in the highest regard as it goes to the ability of the PZC and CHD to properly evaluate the capacity of the land to accommodate the proposed plan. It is essential that the two entities work together effectively to protect the public health. The current dysfunction represents on-going harm to the public and to the abutting landowners affected by the Approval for which relief is much needed. It is equally critical to the wholesome well-being of the state that current policy regarding the implementation of passive solar, renewable energy and energy efficiency techniques be genuinely embraced and its promulgating laws and regulations thoroughly enforced.
Plaintiff respectfully requests the Court to void the decision of the PZC and issue orders requiring the Defendants to begin the process anew, consistent with the nature of the deficiencies; with regard to consideration of passive solar techniques at the time of and concurrent with subdivision design, and with regard to the proper witnessing of percolation tests.


List of Cases, Laws and Regulations Cited
1. East Haddam Subdivision Regulation (EHSR) Section 4.08
2. Connecticut General Statute (CGS) Section 8-25 subsection (b)
3. Perry Brothers v. Canton Zoning Commission, Superior Court, judicial district of Hartford, Docket No. CV 90382078, 5 Conn. L. Rptr. 650
4. (EHSR) Section 1.10 Adoption of a Temporary Moratorium, (a) Purpose
5. (EHSR) Section 3.01 Requirement of Approval of Subdivision Plan
6. (EHSR) Subsection a. Subdivision Plan Approved and the Sale of Lots
7. (EHSR) Section 3.04, Subsection xx.
8. Marshall Sonn v. Planning Commission of City of Bristol 374A.2d159 172, Conn 156
9. Beach v. Planning and Zoning commission of Town of Milford 103 A2d814, 141, Conn. 79
10. La Voie, State ex rel. v. Building Commission of town of Trumbull 65 A.2d165, 135 Conn 415
11. Op. Attorney General, no. 86-054 Conn. Op. Atty. Gen. 207, 1986 WL289119
12. Pelliccione v. Planning and Zoning Commission of Town of Ridgefield 780 A.2d185, 64 Conn App. 320
13. Krawski v. Planning and Zoning Commission of Town of South Windsor 575 A.2d1039, 21 Conn. App. 667
14. Sowin Associates v. Planning and Zoning commission of Town of South Windsor 580 A.2d91, 23 Conn App. 370. Also from Sowin v. Planning
15. Damick v. Planning & Zoning Commission, 158 Conn. 78, 83, 256A.2d428
16. Buttermilk Farms, LLC v. Planning and Zoning Commission of Town of Plymouth 973 A.2d64292 Conn 317
17. (EHSR) Section 4.04 Certification by Town Sanitarian
18. (EHSR) Section 4.03 land With Limitations for Development, subsection (b) Soils with significant limitations for the installation of septic tank absorption fields
19. (EHSR) Section 1.02 Purpose
20. Nicoli v. Planning and Zoning Commission of Town of Easton 368 A.2d24, 171, Conn.89.
21. Lanbein v. Planning Board of City of Stamford 146 A.2d412, 145 Conn 674
22. Weatherly v. Town Plan and Zoning Commission of Town of Fairfield 579 A.2d94,23 Conn App. 115)
23. LePage Homes, Inc. v. Planning and Zoning Commission of Town of Stonington 812 A.2d156, 74 Conn. App 340
24. Grigerik v. Sharpe 247, 721 A.2d526 Conn. 293.




THE PLAINTIFF
Pro Se

Answers to the Questions

The intervenors met with Chatham Health District (CHD) and attempted to ask and get answers to the questions posted in a previous blog. Many questions were simply not answered. Thad King, the director of CHD has a tendency to respond circuitously to questions, or will even confront the question with a question of his own.

Despite the difficulties in communicating, there were a few interesting issues revealed.

1. Disconnect of CHD Review from Public Record: CHD was clear that they do not review the information contained in the public record. They rely on information provided by the town and its land use official. They indicated no misgivings about the fact that significant expert data was submitted into the public record by the intervenors that CHD did not consider. They stated that the public health code dictates the process they employ and that it does not provide for them to consider information other than what is specifically required and/or provided by the member town. They did state that they can ask the developer for more information. They also did not find it problematic that they relied solely on information provided by the developer or his paid experts. They acknowledge the inherent conflict of interest in this process and rationalize it, according to Mr. King, by the fact that there is conflict of interest in everything. Mr. King actually accused the intervenors of having a conflict of interest given that they opposed the subdivision. He could not define conflict of interest.

The fact that the system is set up to preclude the voice of the public from CHD's review is inherently unjust. Mr. King had difficulty answering the question about whom it is that CHD serves. After much pressing and dancing around, he seemed to agree that CHD serves the public (as it is represented by 'member' towns). This systemic disconnect is an issue that the state attorney general should investigate.

2. Competing Codes: CHD explained that the East Haddam Planning and Zoning regulations are more restrictive than the public health code and that they do not review the proposal with regard to the more restrictive requirements. For example, East Haddam requires 24" above ground water for septic systems while the state health code requires 18". According to CHD, the East Haddam Planning and Zoning Commission (PZC) should have been reviewing with regard to the more stringent East Haddam requirements. CHD also indicated that PZC had the prerogative to impose more restrictive requirements. Yet, repeatedly, town attorney Knapp instructed PZC that they did not have jurisdiction with regard to the approval of suitability of the property for septic systems. This seems, like the public record issue above, to be a shell game of responsibility where one entity points to the other with regard to accountability while in reality, neither is taking responsibility. Mr. Knauf indicated that when there are competing codes or regulations, usually the more stringent is applied. That is not what happened with regard to the Morgan Estates subdivision.

3. Public Health Code versus Best Management Practices: CHD admits that they are aware there may be situations in which the state public code under which they review plans conflict with other state requirements. For example, the state stormwater guidelines require best management practices when a construction site, such as the proposed Morgan Estates Subdivision, exceed 5 acres. Mr. King tried to explain that there is a difference between guidelines and regulations. He could not resolve, however, regulations that require the use of specific guidelines. This of course is a shell game of language where a regulation can require the use of a guideline that is then rationalized away because guidelines are not requirements.

4. Email Communication: Director King was extremely defensive about the use of email. He denied that there is any policy about blocking email service from certain individuals, but also indicated that there is no CHD policy requiring CHD to maintain email capability. Ms. Davidson continues to be without email service.

Questions We Have for Chatham Health District

The intervenors in the Morgan Estates subdivision application are meeting with Chatham Health District (Health Department) on Thursday, May 14, 2009 to discuss the apparent disconnect between the Health Department's review of the subdivision application and thousands of dollars of expert testimony submitted into the Town of East Haddam's public hearing of the application. The following questions were developed by the intevenors and submitted to Preserve Landing Hill to post in a blog.

1. Does the Health Department use email?
2. Does Liz Davidson's email currently work?
3. Has there been a problem with it in the past? Has she ever received any emails from any of the intervenors? Ms. Davidson has never responded to any of our emails. Who does the Public Health Department serve?
4. Did Chief Sanitarian Knauf ever visit the site of the proposed subdivision?
5. Upon what information did Mr. Knauf rely to approve the suitability of the site for septic systems.
6. In an email to Health Department Director Thad King, Mr. Knauf indicated that he knew nothing of expert testimony submitted into the public record by the intervenors and their experts. Is this true?
7. Was any of the information in the public record developed through the public hearing process, other than that which was submitted by the developer, considered by the Health Department?
8. Was just some of the public record considered, then?
9. Does the Health Department consider this a fair and balanced review of the pertinent information with regard to approving the application?
10. Does the Health Department consider the information it reviewed as impartial?
11. During our initial conversation, Mr. King indicated that there were reports filed by Ms. Davidson, in addition to the field notes, that were used by Mr. Knauf in support of his approval of the application. Yet no reports were provided in response to our request for all correspondence between Mr. Knauf and Ms. Davidson. Are there such reports and may we have copies of any such reports, as requested?
12. Was any of the correspondence between Knauf and Davidson via email?
13. Was this correspondence subject to any email service interruptions experience by Davidson or any other employees of the Health Department?
14. When emailing Director King, a message regarding a delay of delivery of the email was received. Is there a problem with Director King's email?
15. In evaluating the Deep Hole Testing (DHT) information submitted by the developer regarding ground water levels, were index wells referenced? Index wells are local, monitored wells that indicate relative ground water levels at any given time based on recent weather and rainfall. The DHT provided information about the relative proximity of ground water levels to the so-called mottling line, one way of understanding the average or normal ground water level.
16. If index wells were not referenced, how do you determine the relevancy of the DHT?
17. If index wells were referenced, which dates did you then use to compare the data given that the dates of the field notes do not always match the dates on the application? For example, the field notes indicated some testing was done in March of 2008, yet when it was submitted in the application, it was shown to have been taken in April of 2008. Given that April is typically wetter than March, this would provide for inherent bias that would make the relative level of the ground water to the mottling look better than it really is.
18. Did the dates of the field testing indicated on the developer's application ever change? Do they currently correspond to the field notes (those that have dates)?
19. Is the date of DHT relevant in way to the review of the Health Department?
20. In a telephone conversation, Mr. King referred to our concerns as focusing on minutiae. Do you think the disconnection between the public record of the review of this application and the Health Department's review, minutiae?
21. Are you aware if the Attorney's General has taken an interest in this case?

Planning & Zoning Approval of Morgan Estates and Chatham Health District

On Tuesday, May 12, 2009, the East Haddam Planning and Zoning Commission (PZC) approved the Morgan Estates subdivision proposal in spite of the vigorous protestations of a group of neighbors,. The group, with the help of Preserve Landing Hill, intervened in the process claiming a host of detrimental environmental side effects would result from the implementation of the plan.

In order to approve the application the PZC had to, in effect, ignore or waive aspects of the town's subdivision regulations - a fact that seemed to spur the intervenors to greater lengths. Certainly the even and fair application of existing, approved regulations is a core issue in the controversy surrounding this subdivision. Intervenors argued that the existing regulations offer little more than a 'smoke screen' that gives East Haddam residents a false sense of security. These regulations, often highly touted as 'progressive' and among the best in the state, are intended to protect the rural character of the town and property values. What remains unsaid is the effectiveness of the process the supports the implementation of the regulations.

In addition to deep concerns with the enforcement of the current regulations, the intervenors discovered that the current system includes an arm's length review of applications by the Chatham Health District (CHD). CHD reviews building proposals with regard to the Public Health Code's regulation of septic systems and wells. This review is curiously disconnected from the public hearing process that is supposed to give voice to interested parties other than the town commission and the developers. CHD, through their own admission, were completely unaware of expert opinions and investigations performed and submitted into the public record during the Inland Wetland and Watercourses and PZC hearing processes. In a memo between Chief Sanitarian Steven Knauf and Director Thad King, Knauf states that he was 'unaware' of any of information presented during the hearings. Knauf reviewed the developer's plans, corresponded with local sanitarian and fellow CHD employee Liz Davidson, and signed off on the suitability of the location to support septic systems with out ever visiting the site. In order to do so, Knauf relied on field notes provided by Davidson.

Intervenor Michael Harris, an abutting landowner, visited Davidson's office on two occasions and asked to review the field notes prior to the PZC approval of the subdivision plans. Davidson could not find all of her notes. Immediately after this deficiency was submitted into the record during a public hearing, the field notes were found and submitted to the PZC. These notes contained some entries that were not dated, nor was the location indicated on others. One set of notes is dated March 2008 yet the subdivision plan indicates a date of April 2008. Intervenor Harris pointed this out, to no avail, to the Commission during the public hearing. This information can be found on the audio tapes of the public hearings.

The PZC relied solely on CHD's review and approval of the suitability of the plan with regard to septic and wells. Town attorney Eric Knapp vigorously informed the commission on several occasions that they had no purview with regard to CHD's review. These comments can be found in the audio tapes of the public hearings and meetings. He, in effect, made it clear to them, correctly or not, that the PZC had no ability to apply discretion and good sense if they were uncomfortable with the review performed by Chatham. Prior to the PZC decision, Intervenor Harris appeared before a Town Selectmen's Meeting and outlined the intervenor's concerns with regard to the effect of Attorney Knapp's comments seriously constraining the PZC.

Commissioner John Matthew has repeatedly expressed concern over inadequate evaluation of ground water levels by CHD. He was overruled by Knapp each time. To members of the audience, it appeared Knapp worked for the developer rather than the Town. It was equally clear that Knapp did not represent the concerns of the abutting land owners, despite the fact that it is their tax money that pays his fees; at points during the hearings vigorously cross-questioning and challenging statements made by the intervenors. At the most recent PZC meeting, a local resident stated he was scared of Knapp in reference to new regulation language drafted by Knapp and proposed for adoption by PZC.

In order to approve the Morgan Estates application, the PZC waived several requirements of the existing subdivision regulations. For example, the requirement that trees be planted along subdivision roads was waived because there was insufficient room for the trees. When questioned about why PZC would accept a plan that couldn't comply with the regulation, the answer was that the developer had proposed to plant the trees in another location.

PZC also allowed the developer to figure out a way to raise the bottom of a proposed detention basis from 1.5 feet above the ground water level to 3 feet above ground water - at some later date. Rather than holding the design to the regulations, the town's consulting engineer Brian Curtis, with Nathan L. Jacobsen Associates in Chester, informed the commission that correcting the problem was something that could be done during construction when the developer could bring in fill in to raise the level or find some other way to alleviate the shortfall. Even though the regulations are clear, the developer was given a free pass on this issue.

A seemingly important issue having to with Section 4.08 of the Subdivision regulations - Passive Solar requirements - was also explained away. At Tuesday's meeting, after urging by intervenor Harris, during a conversation in the Town Hall several days prior to the PZC decision, land use official Jim Ventres presented the solar concern as one of three outstanding issues for the Commission to consider before deciding on the application. The first of the three issues he presented had to do with the tree planting that was again explained under the alternate proposal to plant trees around the remote detention basin rather than along the new road. The second issue seemed trivial and had to do with a missed review regarding the possible need for the installation of sidewalks. Although no sidewalks can be found within miles of the site, the issue was raised perhaps to offer some display of diligence. Or, it may have been provided as context for the more important solar issue - silly context meant to distract the Commission and audience from the real potential of the solar issue to be an authentic concern.

In fact, it is an authentic concern because Section 4.08 exists in the regulations as a result of state law requiring solar analysis as part of subdivision design development. This article from a New York Times article sheds some light on the solar issue and Connecticut's struggle to get town's to adopt and follow the law. In the same town hall conversation, between land use official Ventres and intervenor Harris, which took place in the Town Clerk's area with Town Clerk Deb Dinette working within earshot, Ventres brushed off the importance of the solar section 4.08.

As noted in a previous blog, PZC initially had Attorny Knapp draft two decisions - one to approve the application and another to deny it. They reviewed the motion to deny first, deciding that they could not support it because its argument was not sufficient. Yet it mentioned neither the tree issue, the detention basin level issue nor the solar issue. When pressed as to why nothing in Knapp's draft motion to deny was mentioned about the solar deficiency, Ventres stated the commission had so many issues to consider that they simply could not get to all of them. He went on to characterize Section 4.08 Passive Solar requirements as something that was stuck in there back in the eighties.

What he failed to mention was that the section is required by state law, yet in East Haddam as in all towns in Connecticut, it is rarely if ever complied with. During the 80's this may have been acceptable, but in 2009 it seems a recipe for (continued) disaster. So, despite the real issue of energy costs and diminishing availability, Attorney Knapp informed the commission that he had conferred with his partner Attorney Mark Branse about the solar concern. Their recommendation was for PZC to simply write a paragraph indicating that the solar design requirements could be done at some other time. Even though the intervenors, one of whom is a solar expert, testified that passive solar design at the subdivision level must be performed in concert with all the other design efforts because it involves consideration of lot layout, road and building orientation, and solar access, the town attorneys and PZC choose to ignore the solar requirement and approve the application with the stipulation the the solar design consideration be done at a later date.

Yet, the design is now complete and approved. The attorneys' advice was based on an incomplete understanding of passive solar design, and a poorly if not misrepresented understanding of the purpose of Section 4.08 and the state law requiring it. The applicant did nothing to try to meet the requirements of Section 4.08, never mentioning or indicating anywhere on drawings or applications that the proposed layout of the seven new homes considered passive solar techniques.

Probably most disconcerting of all is the disconnect represented by the relationship between the town commissions and the Chatham Health District. The intervenors spent some $17,000 on expert and legal advice in an effort to bring out the true impact of this development on the neighbors, the community and the land. Yet Chatham Health District indicated, in writing, that they were completely unaware of any of the expert opinions. These opinions indicated that the soil types and ground water levels at this specific site are problematic. They indicated that the Public Health Code upon which Chatham so rigorously relies, are not necessarily adequate in areas with the soil types found at the location of the development. The experts included emails from a State DEP official that admitted to this deficiency and efforts underway to improve it. A professional engineer hired by the intervenors outlined the requirements for best management practices based on, among other things, the fact that the development will disturb more than five acres of land and, thus, is considered a large land disturbance. Despite these expert opinions, best management practices were not applied, only the bare minimum afforded by the health code. Chatham Health District was, by their own admission, oblivious to all of the proceedings and information submitted through the public hearing process.

How can it be justified that there be a public hearing process that has a parallel, secret process reserved for the so-called Health Department (CHD)? With this type of process, who's health is being protected, the public's health, or the fiscal health of the developers?

PZC Meeting, Re: Morgan Estates

Last nights planning and zoning commission (PZC) meeting was a production that would rival the local Goodspeed Opera House's best musical. It was a two act play in which the commission evaluated the plausibility of denying the Morgan Estates application based on a motion drafted by town attorney Eric Knapp, with the help, ostensibly, of Land Use official Jim Ventres. Act two involved the review of a corollary motion to approve.

Knapp had been apparently given instructions to draft the two possible motions including reasons supporting both decisions. The commission would then review both motions and decide which one was more reasonable.

Perhaps it is not obvious to the uninitiated, but the unspoken strategy that unfolded is this: each motion draft became the frame inside of which the commission evaluated plausibility. The creator of the draft motion was in full control of which issues would be cited as support of a denial or approval, with other issues left unconsidered, unless a commissioner were to bring up a new idea on their own. They did not.

The PZC decided it was efficient to review the motion to deny first, reasoning that if they supported it then there would be no reason to review a motion to approve. There were four rather mild reasons for denying the application written into the motion by Attorney Knapp. Each of these was, in turn, explained away or found to be unsuited to a denial of the application. In the end, the motion to deny was deemed unsupportable.

Yet, during discussion of the motion to approve, the commission decided it was okay that the application did not meet the requirement that its detention basin be a minimum of three feet above average ground water levels. They also decided to let the applicant slide on a requirement of the subdivision regulations that trees be planted along the proposed road. There is not sufficient room to plant these trees, so the commission decided the trees could be planted elsewhere. In support of its desire to approve a motion to approve.

Probably the most egregious omission though, is with regard to the failure of the application to meet Section 4.08 of the Subdivision Regulations. This section requires that the applicant demonstrate passive solar analysis and techniques. It was never addressed by the application in any manner whatsoever. This fact was pointed out by one of the intervenors during the public hearings. Yet, even though it is a matter of public record of which the commission, the land use office and the town attorney are fully aware, the failure to address Section 4.08 was never discussed at any of the meetings subsequent to the public hearings. Nor, obviously, did this issue get selected as a possible ground for denial. This is curious.

Passive solar analysis needs to be done as part of an integrated design effort that looks at site design, lot layout, building orientation, and solar access issues. There is no way that this analysis can be done after the subdivision is laid out. If the failure to demonstrate passive solar techniques was enforced as it is written in the subdivision regulations, there is no way the developer could comply. The commission would have to deny the application. That, of course, is not happening.

The PZC meeting last night was a bit of entertainment contrived to create the appearance that the issues raised by the Intervenors were being considered by the commission. Yet they left out the most powerful issues, and decided that the four mundane supporting reasons offered by Knapp/Ventres were not sufficient grounds for denial.

This might make a good musical, but it is poor process and in effect violates the land owner rights of the abutting landowners by failing to apply the existing regulations evenly and effectively.

Letter to the First Selectman

The following letter to First Selectman Mark Walter was submitted to our blog site:

Dear Mark, Thank you for attending the P&Z public hearing last night. There were many important issues presented and discussed.

I am passionate about this issue, but not because it is my backyard, although that certainly supplies a lot of energy. Rather, there is a curious dynamic at play in town that is not constructive for people that live here and I feel strongly that we as a town need to improve this situation.

There is a subtle yet powerful inertia serving the perception of economic development in the form of residential housing that pushes applications like Morgan Estates forward despite a lack of diligence and in spite of the harm that this type of development does to the town in the long run. It is commonly understood that residential development is an economic drain on the town. Yet this knowledge is not being served in the least. Rather, there is an old perception that progress includes the construction of new houses and the best we can do is to stay out of the way.

This is old thinking. It hurts the town and makes it a more and more challenging place to live as we move into a future that requires a resilient community economy. This resiliency consists of businesses that serve the everyday needs of people that live here. This is true economic development, and an imperative of the changing times.

I urge you to not let the temporary downturn in energy prices and upturn in the stock market lull you to thinking that our national or local economy will ever be again like it was. It will not – we are at peak oil and peak natural resource in all areas – ores, metals, wood, clean air, clean water – the list goes on and on and includes debt and the ratio of ever rising GDP to a fixed (and declining) resource base. The nature of these exponential growth curves is that we will be overwhelmed with sweeping changes in a very short time. This is frankly a question of mathematical certainty, not opinion. (see chrismartenson.com for a cogent information supporting this view).

You can also read much more of the views of a small but growing group called Preserve Landing Hill at their blog site: http://preserve-landinghill.blogspot.com/

The unfortunate dynamic in our town includes the use of our tax dollars, public money, to support a system of review that is geared toward approving applications rather than holding them to a firm interpretation of our regulations. You heard examples of this last night when we parsed the meaning, or lack thereof, in NL Jacobsen’s engineering consulting letter. You heard it when Town Attorney Eric Knapp inappropriately challenged me, a taxpayer that pays his bills, with requests for justification of points I had made in my presentation. You also heard a clear argument that town dollars are being spent to review an incomplete application.

I am writing to express my concern as a citizen and tax payer over expenditures of public money in this regard; paying an attorney that is not representing the best interest of town folk, paying an engineering consultant that is not protecting the town and conducting resource intense public hearings on incomplete subdivision applications.

Lastly, now is the time, since they did close the public hearing, to turn away from being oppositional and to create an outcome that serves the town better – a preserve in the place of 7 four bedroom homes. The Land Trust and the developer are talking. All that is needed is to now talk realistically about creating this reality. It’s that easy. Please support the positive alternative, win/win possibility that a preserve offers to all involved!

Background for March 24 Hearing 8 PM - EH Grange

The following was submitted to Preserve Landing Hill by one of the intervenors. This email exchange summarizes common concerns and reluctance to get involved, and also expresses an important context that can help folks acquire additional energy needed to face the sometimes intimidating public commission hearings.

Hi,
Can you tell me more about the Morgan Estates issue? Has it passed wetlands? What are the regs that it doesn't meet? I know that particular parcel [years ago]. I remember the wetlands, and that it was home to many, many deer (for which Deer Run is named, I presume).

Unfortunately, if it does meet all the regs, then just not wanting it, because it changes quality of life...and I agree it would, doesn't fly legally. The commission cannot reject it on the basis that the neighbors don't want it (they would have had to have bought the land, to keep it the way they want it...there are ownership rights). Because of landowner rights, and the way they conflict with "rural atmosphere" I think we as a town should buy up every piece of land we can...but there is a lot of land. Another thought is that this piece is close to the town center (as was the Daniels Road development) where, we should be building...not out halfway to Devil's Hopyard. Lake residents, who's properties, at the moment, are protected from developers by kind neighbors that buy up all the open space are aware of how precious woods are....I would like to see the woods behind me in a really protected preserve, as I don't know what my neighbors children may do with it in the future.

Fill me in, if you have time, please, on what your arguments are for the commission.
Thanks,
A Concerned Citizen

Dear Friend: Thank you for taking the time to write and ask about the issues. I forget to tell people that they can read much more about this at the blog site of our local group called Preserve Landing Hill at preserve-landinghill.blogspot.com. You can find much more info there.

To answer your questions, let me begin by saying our interests span a range from the general to specific and our recommendations are consistent with all aspects of this range of concerns - from the philosophical down to the level of specific regulations and the process used to implement them. We believe this application should be denied and all efforts put into the creating a preserve on the property. The great news is that the Land Trust and the developer are discussing this alternative. This has come about as a result of our intervention and because of the broader trends in the economy and the world. While we understand the history of law and thinking about landowner rights, we also believe strongly that the resulting systematic suburbanization of town has and continues to put current and future residents in a difficult position for dealing with a very different culture in the not-so-distant future.

So we are offering ideas consistent with this on a philosophical level. We also do not agree that the concept of encouraging development in areas near the villages is good for the town. We need open space near where people live. It has also been shown over and over that residential cul de sacs are not economic development, they are an economic drain on the town.

More specifically though, the proposal does not meet the regulations of the town nor the public health code. We pointed this out during the IWWC process, yet it was approved anyway. We have appealed the IWWC decision as a result.

We pointed out, then, that the process of applying our rather good regs, is flawed. For example, we submitted clear evidence of the developer's expert misrepresenting themselves as a 'Doctor' (Phd), and then submitting a report in which they took a picture with their backs to a pond of water and offered the picture as an 'overview' of the the subject wetland. (see article about Dr. Leeanders on the blog site). Our licensed engineer pointed out during IWWC that the site is a large construction site under the state guidelines and therefore must apply best management practices (BMP). We also pointed out that certain separation distances did not meet the public health code.

After passing IWWC, yet still under appeal, the plan was submitted, though still deficient, to the P&Z. The Chatham Health District has since reiterated our public health concerns. Yet the Town continues to consider this application even though it does not meet the public health code nor other aspects of our regulations.

For example, the applicant has never acknowledged the sites designation as a large construction site and continues to try to meet only the bare minimum practices rather than BMP. The plans did not go through a pre-application review, yet they never submitted two sets of plans, one a conservation approach, the other conventional, as required by the regs. They have not done a passive solar analysis per the regs and this is something that can not be done retroactively. They have offered deep hole test data and peculation tests that are curiously benign, to those of us living here and having an understanding of the ground water and soil types, and the Chatham Health District person can not find field notes for all of these test. They have not done required hydraulic permeability testing for the proposed infiltration devices including rain gardens and a detention pond. They have not provided 25 foot wide buffering consistent with the regulations and with preserving existing land values.

In our experience and in talking with others in town, there is an element of politics that unfortunately also creeps into this process. We can make a difference by showing up at the grange and voicing concern. Even better, because we have the positive alternative of a preserve as a possibility, we can offer our support of this idea, which is consistent both philosophically and technically, generally and specifically, with the town's best long term interest. We don't have to be simply in opposition to the proposal.

I hope you'll consider coming to voice your opinion regardless of where you fall on this range of issues.

Next Morgan Estates Public Hearing: March 24, 2009

The next hearing on the Morgan Estates Subdivision proposal is March 24, 2009. This is scheduled to be the final hearing. It is extremely important that everyone with an opinion about this development, the challenges of further suburbanization, and the lack of functionality of Town regulations, attend this meeting and SPEAK UP!

Please attend!

March 10 Hearing For Morgan Estates - Part II, Public Comment

An abutting landowner spoke in response to the presentation, the discussion of high ground water and the Developer's dismissal of concerns about potential problems with the septic system. The landowner, also an Intevenor, stated with some force and emotion that she had lived on the land for thirty-five years and knows quite well the challenges of dealing with constant high ground water in the area. Examples of water flowing over the back yard, overflowing stream banks, and the now frequently cited characteristic of alternating dry conditions and flooded conditions were mentioned. The speaker pointed out that the academic discussion did little and would do little to prevent a growing problem with the addition of the proposed cul de sac road and the houses.

Another Intervenor and abutting landowner spoke next. He stated that the neighborhood is one-acre zoned and the proposed eight and nine acre lots are not in keeping with the character of the neighborhood. He pointed out the extensive and complicated conservation easements that the Developer points to as beneficial compromises. He concluded that a the formation of a single preserve by combining all of the conservation easements would be better for the neighborhood and any future residents, as well as good for the town as it would provide accessible open space and alleviate oft cited maintenance and enforcement concerns regarding the conservation easements. He further stated that the resulting, smaller lots would be more in keeping with the character of the neighborhood.

The speaker submitted written testimony regarding the review letter of Brian Curtis: "The Intervenors wish to point out several key aspects of the letter of Brian Curtis of Nathan L. Jacobson & Associates, Inc., (NLJ) dated March 4, 2009. This letter provides a summary of NLJ's review of the Morgan Estates Subdivision plans with regard to the East Haddam Planning and Zoning Subdivision Regulations only. It is based on information received on January 13, 2009. The letter states on page 1, paragraph 1 that "The documents were reviewed for conformance with the engineering requirements of the East Haddam Subdivision Regulations."

#1 -The letter states "Our previous engineering reviews included consideration of comments provided by Meehan & Goodin, PC and comments provided by REMA Ecological Services, LLC." However, neither Meehan and Goodin nor REMA Ecological Services, LLC have as yet reviewed the plans
for conformance with subdivision regulations. This will happen when the Intervenors are given a set of valid plans that are not concurrently undergoing revision. Mr. Curtis' letter is specifically about a review with regard to the subdivision regulations. Therefore, the former comments of Meehan & Goodin, PC and REMA Ecological Services, LLC are not relevant to Mr. Curtis' letter.

#2 - Given its focus on the subdivision regulations, it seems fair to say Mr. Curtis' letter does not comment on general conformance with the East Haddam Planning and Zoning Regulations nor the Public Health Code.

#3 - At the previous public hearing on February 10, 2009, the Intervenors submitted evidence that the Morgan Estates Subdivision plans do not meet the public health code. At that time, the PZC had before it a letter from the Chatham Health District confirming the failure of the plans to meet the public health code. Given that Mr. Curtis' letter does not comment on public health code issues, and its focus on the
subdivision regulations, one would presume that he does not note the public health code issues because the subdivision regulations do not clearly articulate a requirement to meet the public health code. This
would obviously be provided elsewhere in the Planning and Zoning regulations.

#4 - However, NLJ's omission of the public health code issues is of concern. If Mr. Curtis' letter is strictly limited to a review of the plans conformance with the subdivision regulations, then there may be an acceptable reason for the omission of the public health code issues. However, given paragraph 2, page 2 stating consideration of Meehan & Goodin, PC comments, that we have already demonstrated raised examples of the plan's failure to meet the public health code that have been confirmed by the Chatham Health District, we find NLJ's omission deeply concerning. This omission does not serve the best interests of the Town of East Haddam.

#5 - We conclude that the information in paragraph 2, page 2 of Mr. Curtis' March 4, 2009 letter was provided in error - that its references to his consideration of Meehan & Goodin, PC and REMA
Ecological Services, LLC comments is out of context and not pertinent to a subdivision regulation review. Moreover, it is potentially misleading to this commission.

#6 - This commission should be uncomfortable with the NLJ letter of March 4, 2009 because of this clear conflict. The letter fails to properly treat the pertinent and valid comments made by a licensed
engineer with regard to the Public Health Code yet refers to consideration of these comments in an unrelated aside. This reference could easily be misinterpreted by the Commission to mean that NLJ has dismissed the Intervenors experts' comments despite that fact that a. the reference appears in a letter whose subject matter is unrelated and b. the issues in question are extremely relevant to the Town's interest.

#7 - NLJ has not yet had the opportunity to review Intevenor comments on the plan's conformance with any aspect of the Planning and Zoning Regulations, including the Subdivision Regulations, except, perhaps, where these regulations intersect with the Public Health Code. In that regard, the Intervenors ask the Commission to petition NLJ for their review of the plans with regard to its compliance with the public health code and to also consider advising NLJ that its omission of the public health code issues in its review letter of March 4, 2009 does not serve the best interests of the residents of East Haddam."

The speaker made additional points about the Curtis letter including pointing out the requirement to move footing drains. He stated that during the IWWC review, several footing drains were incorrectly shown on the plans and it was not clear if they had been corrected to reflect proper engineering, nor if the new changes would further impact there proper installation. He pointed out that at least one footing drain comes very close to emptying into a confirmed wetland.

The average speed on Orchard Road was also discussed with regard to sight distances. The speaker indicated that he routinely saw vehicles approaching 50 MPH in a 30 MPH zone, especially during drive times. It was asked of the Commission if the proposed sight lines accounted for the excessive speeds. No answer was offered.

The speaker commented on a proposed stockade fence proposed for along his property line, noting that this violated provisions of his deed as it may well violate the Developer's deed. He also asked if the removal of a swale in front of Lot #8 had any impact on the IWWC approval that was contingent on the plan as it was submitted prior to this revision. We note here that lot lines and house locations have also been changed subsequent to the IWWC approval. Curiously, no review by IWWC of all of the changes happening to the plan currently has been yet proposed. Staff member Jim Ventres offered to make the determination as to whether or not the IWWC should review the change to Lot #8.

The speaker addressed the high ground water issue stating he had submitted photographs into the record during the IWWC hearings showing the problem including volunteer fireman that were called in a few years prior to help with emergency flooding that occurred from water coming off the hill where Lot #4 is proposed. He clearly stated a concern for well contamination because of the proximity of his well to the proposed septic on Lot #4. He reminded the Commission that expert testimony submitted to them described the reasons why even the State's public health code was insufficient to protect his well and back yard from septic leachate contamination because of the soil structure and type in the area. Expert testimony described the Paxton/Montauk soils with under lying hard pan that resulted in water running horizontally rather than penetrating into the soil as is usually the case. He pointed out on the plans where the leachate would emerge under the scenario. He advised the Commission that the Town would be liable for contamination as they have been fully apprised of the risks.

The speaker also rebutted testimony from Mr. Nemergut in which it was stated that using a mottling line was the best method for determining ground water levels. Expert testimony submitted described the variability of the ground water levels in the soils found in the error. This testimony stated that mottling lines are not a good way to determine the range, frequency and duration of ground water levels. The speaker said the overall proposal is flawed in that it proposes more development on the land than the land can support. He pointed out that the Intervenors and the Commissions had been in effect helping the Developer engineer a bad initial plan, describing the process as putting 'perfume on a pig'. It was suggested that monitoring was needed to properly determine ground water levels.

A concerned resident next spoke, asking if questions he had posed at the prior public hearing had been answered as promised. The Developer's attorney stated that they had not been answered. The resident went on to question the engineer, through the Commission, about the heights of the various, proposed septic systems. The revised plans include a table indicating for which lots engineered septics are proposed.

During the comments of the town resident, the Developer's attorney interrupted and angrily told the Commission that they were doing everything they could to meet the regulations of the Town, but that they would not be responding to questions 'off-the-cuff'. The resident attempted to return to his comments and questions, but soon finished.

However, during his comments, the resident providing personal experience as a farmer that had, at one time, grown corn on the property in question. He attested to the extreme wetness of the land. He further commented on the need to provide for some safety factor with the proposed development noting that there was no cushion proposed in the plan that would protect the neighbors and future landowners if the high ground water, the soil types and structure, and the standard code requirements, based on state-wide averages for soil type, proved insufficient to prevent a public health disaster.

March 10 Hearing For Morgan Estates - Part I Presentation

The March 10 hearing for the Morgan Estates Subdivision (ME) took place at the East Haddam Grange building on March 10, 2009. This plan is vigorously opposed by a group of residents that have filed as intervenors (Intervenors) under state law. At the previous hearing it had been agreed that revisions to the plans discussed that night would be made available to the Town and the Intervenors prior to the March 10 hearing. As is the usual practice, the developer's engineer did not provide plans prior to the meeting, but showed up at 8 PM with revised drawings to present. The intervenors objected stating they felt Due Process was not being served. The following statement was submitted in writing to the Planning and Zoning Commission (PZC):

"DUE PROCESS
The Intervenors ask to be heard regarding Due Process and offer our opinion that the public hearing should be rescheduled to allow the Intervenors a timely review of the revised plans that are before the PZC tonight. The plans were not made available to the Intervenors prior to this meeting. We submit that it would be a violation of Due Process if the hearing were to be held tonight and, thus, respectfully request that it be rescheduled no sooner than 30 days from today.

This request is based on the fact that holding the public hearing tonight would create a situation in which the Intervenors are not able to comment on the plans in a contemporaneous manner; in other words, in a manner that is timely with the presentation of claims and assertions by the Developer. It is essential that this commission hear concurrent critique of the plans presented. If this critique is not allowed concurrently, then comments are made and revisions initiated and the Intervenors thus find themselves reviewing a prior iteration of the plans - always one step behind. This situation is inherently biased toward the Developer as the Intervenors comments on prior plans can appear to be rendered irrelevant by unconfirmed assertions made during the submission of subsequent, revised plans. This process prevents the PZC from effectively moving from one set of revisions to the next and would result in an unsupportable decision. Thus, it is in the best interest of the Town that we request the rescheduling of tonight's hearing."

The Town's attorney, Eric Knapp attempted to squelch the complaint at one point denying one of the Intervenors from responding to his explanation as to why the hearing would go forward regardless. At the Intervenors request, Attorney Knapp read the Intervenors statement into the record. Upon finishing, he stated that the Commission would be proceeding. Mr. Thomas, a member of PZC spoke up suggesting that perhaps the Commission should stop and think prior to rendering a decision about proceeding. After brief discussion, it was decided to proceed.

Prior to any presentation, new information received by the Town was read into the record including a letter from Town consultant Nathan L. Jacobson Associates, Inc. and their engineer, Brian Curtis. In the letter, Mr. Curtis outlined the results of his review of the plans, prior to the most recent revision, with regard to conformance with the town's subdivision regulations.

In that letter, Mr. Curtis also made statements with regard to prior reviews and site walks. He specifically states in the letter, "Our previous engineering reviews included consideration of comments provided by Meehan & Gooden [sic], PC and comments provided by REMA Ecological Services, LLC."

Developer's Attorney David Sherman then presented into the record a large stack of papers representing the return of record for the Intervenor's appeal of the Inland Wetlands and Watercourses (IWWC) decision in favor of ME. Attorney Sherman submitted the record in response to the Intevenors submission into the record at the previous public hearing of the expert testimony provided by the Intevenor's experts.

The Developer's attorney and engineer proceeded to present the revised drawings and identified all items that had been changed. They stated that they had addressed most, but not all outstanding items. They further acknowledged that they had not yet had the review and comments or approval of the Chatham Health District.

Commissioner John Matthew asked the engineer about the complications that could arise from high ground water levels. He spoke from personal experience about the variability in ground water levels and the need, on occasion to provide a curtain drain as a safety precaution for allowing septic systems to operate properly if there are extended periods of high ground water. The Developer's engineer, Roger Nemergut, disagreed, saying there was seldom if ever a need for curtain drains and that he preferred not to use them. It was noted that there is little room for the addition of curtain drains; the layout of all of the various elements proposed on the lots is quite tight. Currently the plans do not meet the public health code because these elements can not be arranged with sufficient separating distances as required by both the Public Health Code and also Best Practice recommendations of the State.

Neighbor's Appeal to EH Land Trust

The following is a letter sent by a property owner adjacent to the proposed Morgan Estates Development recently:

Thank you for speaking with me at length this morning. I contacted you because the developer of the Morgan Estates project currently under review by the Planning and Zoning Commission has expressed to us a willingness to discuss either a modification to the plan in which a majority of the property could be conserved, or an outright sale of some or all of the proposed lots. They have asked us to attend a meeting on Monday, March 2 at 630 PM to discuss a proposal they have prepared. We would like the Land Trust to attend this meeting if they would be willing.

We have been advised that as intervenors in the P&Z process we should not simultaneously negotiate with the developers toward a purchase option. Therefore, we are looking to the Land Trust to help facilitate constructive discussion along the lines of conservation. Moreover, giving the mounting risks that the developer is experiencing in trying to engineer a plan for the property the provides for 8 lots in the context of the declining economy, they have become more amenable to an alternate approach that would allow for preservation of perhaps five of the seven proposed new lots.

The developers initiated their proposal based on eight lots, one of which is the existing, former home of Anna Morgan. They have been working at fitting the remaining seven lots into approximately twenty four acres, much of which is designated as wetland and upland review area including 'facultative' (though not proven to be functional) vernal pools and a large, proven vernal pool under the power lines that imposes a substantial review area on the property. In addition to the wetlands, the nature of soil consisting of Paxton/Montauk imposes severe drainage considerations. In order to support the level of development proposed, numerous, maintenance intensive drainage characteristics including a retention pond, swales and rain gardens are proposed. Coordinating all of these features inside of the proposed boundary of clearance is proving challenging for the developer. During the various review processes, they have been incrementally required to refine the plan's design to make it work on this project. With each revision they become more invested in the plan even though the risk of failure continues to mount and the possible return on investment falls. We believe the plan was untenable from the start, however, once set in motion, the process tends to gain momentum given the increasing investment. Despite the developer's commitment to the plan, they are experienced at gaging risk and reward. Thus, we believe there is a genuine opening to discuss a conservation alternative.

The plan as submitted does not currently meet the public health code. As intervenors, our licensed engineer pointed this fact out during the wetland hearings. Although the IWWC passed the plan anyway, the developer did not or was not able to modify the plan to have it comply with the public health code prior to submitting it to P&Z. As part of the P&Z review, the plan was submitted to the Chattem Health District who confirmed and echoed the flaws pointed out by our engineer.

At the last P&Z meeting, the first public hearing of the process, the commission stated that they would be looking for buffers to be included in certain areas. This additional requirement may make it even harder for the developer to coordinate all of the needed elements in the plan, thus increasing the risk of failure. Meanwhile, the economic downturn and the struggling housing market are coming into ever sharper relief. We believe this is also creating a situation of mounting risk and diminishing reward that is encouraging the developer to be more open to a conservation approach.

We believe that there is now a unique opportunity to open constructive discussion about the possibility of preserving most of this property. Via separate email I will send a copy of the location map and P&Z application, a list of the neighbors and a copy of the Chattem Health District letter outlining the public health code issues. (I'll need to get to the office and scan this stuff for you.) We know for a fact that some of the neighbors would be willing to provide some financial support for a plan to preserve the property. We are asking that the Land Trust take up the role of facilitating the discussion of the possibility of preservation, and perhaps act as a coordinator for putting together a group and a plan to make this happen.

Thank you very much for any help you can give us to make the idea of conservation of this property a reality. We ask that the Land Trust give its best consideration to attending the meeting on Monday evening!

PUBLIC HEARING FEBRUARY 10, 2009

A public hearing date of Tuesday, February 10, 2009 (8 PM at the Town Grange Hall) has been set by the Planning and Zoning commission (PZC) to hear public input on the Morgan Estates application. As mentioned elsewhere in this blog, this is an 8-lot subdivision that threatens to fragment and harm sensitive wetland and box turtle habitat, as well as impacting the character of the Landing Hill area. If you live in the Landing Hill area, between the villages of East Haddam and Moodus, or are concerned about the continued suburbanization of our rural community, you are urged to attend the public hearing and speak out.

Speak your mind, even if your voice shakes. The deeper inappropriateness of residential home construction in the midst of the current economic crisis, as well as environmental crisis and emerging peak oil scenario deserves to be aired and considered in a public forum. It is common knowledge that home construction is not real economic development; it does not produce net revenue for the town. Instead, it is an old idea that people that own land should be able to anything they want with it, even if it is bad for the community. The times demand that we rethink this approach to community wellness. Unfortunately, like the Inland Wetlands Commission, the PZC is securely stuck in the old paradigm and will only review the application on its face value and ability to promise to meet current zoning regulations. The ideals needed to steer our town on a better course will not be considered - unless we demand it.

Every time these developments come up for public comment it is an opportunity to speak truth to power where grassroots folks can ask that the town watch out for the best interests of the community and not the profit motive of developers. During the recent motion filed by the town and the developer to dismiss an appeal of the Inland Wetlands Commission decision to allow this development, both the town and the developer were on the same side arguing for a dismissal. Despite that fact that prior rulings established a clear record of case law on the matter, the town and developer joined together to waste tax payer money on a frivolous motion. Rightfully, the motion was dismissed, but not without first creating additional legal bills for all parties including the town.

The scenario in which town and developer, and their respective lawyers, gang up on taxpaying landowners is important to be aware of. The old paradigm does not protect the town or the towns people and it is up to us to demand change. Yet still we see these commissions succumbing to old ideas about perceived but false revenue generation and land rights. It is imperative that the rights of the land itself and the other creatures living on the land be acknowledged by our actions - through the execution of properly constructed regulations.

As described in our experience with the Wetlands Commission, despite reasonable regulations, the process to implement and enforce them is woefully inadequate. We should not let this practice continue - the PZC public hearing on the 10th is a great place to have your voice heard!

Dr. Seuss Tells All

If you haven’t read Dr. Seuss’ book, The Lorax, you should. And then, we suggest, passing it along to a young person! Here is a cute review we found on the Amazon site, written by a fellow East Haddamite.

There’s not much to say, so many things to write
About this book by Seuss, a zinger with a theme that’s less than trite
As usual he invents words and things and animals to delight
There’s no stopping his inventiveness, his genius gives me to fright
But read on I must, and so must you
For he offers a commentary on the world around too
It isn’t so sweet really, and the kids would do well
To learn this early instead of thinking all’s swell
The trees of Truffula offered fruit divine
Until they were all chopped down by a capitalist swine
He doesn’t really say that, I phrased it myself
Forgive the intensity from this young scribe elf
But you see, just recently I had this vision
Of a culture that’s driven
Past the red line
I tried to convince the local middle school principal, yes I did
To simply show to a film to our kids
A film called The Story of Stuff, it’s really quite stunning
And not a stone’s throw from Seuss’s moral funning
But he said no and I learned convincingly
That our attachment to the status quo is practically instinctual
This book, and yes the film too I’m happy to say
Try to raise the bar
To admit that our growth economy has gone a bit too far
No he would not show the Story of Stuff
The kids might get upset, it would be too tough
To affect their belief in Santa Claus
And all that he stands for
Oh but that’s just one example of many
For me, a silly parent, a concerned ninny
So yes, Seuss does it well, surely better than me
He starts with a book about a simple tree
And then there are thweaters or something equally funny
Things you can wear when sleeping or running
They are most needed, we couldn’t be without them
So they cut all the trees and made enough for all, no doubt then
‘Cept a funny thing happened they didn’t expect
The water turned black and the air smelled like heck
The birds flew away, the animals fell ill
The price for the tweaters (or whatever they’re called) was a bitter pill
You get the gist - its an important message
Enjoy the education, take steps to unsuppress the suppressage
Whether with the books you read, like this one
Or the causes you champion, like challenging curriculum
Its for the kids I say this, for the kid’s future
We’ll all be better off - with the help of ideas Seuss help nurture