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?