P&Z Scrutinizes Its Environmental Rules Proposal

By Andrew Gorosko

Following discussion at a December 3 session, Planning and Zoning Commission (P&Z) members have delayed taking action on their set of proposed regulations intended to protect the environment in development applications involving subdivisions, resubdivisions, site development plans, and special permits.

P&Z members decided to wait until December 17 to act on the proposed land use rules, which would require applicants to submit environmental impact reports with development applications.

Agency members had been poised to act on the proposed rules on December 3, but decided to postpone action on the matter after hearing complaints lodged by attorney Robert Hall.

Mr Hall often represents applicants seeking development approvals from the P&Z. On December 3, the lawyer told P&Z members that he was representing no one, but expressing his own viewpoint on the proposed land use rules.

P&Z Chairman Lilla Dean has explained that state law covering land use agencies specifies that those agencies have a direct role in reviewing the environmental aspects of development applications, providing a legal basis for such environmental protection rules.

Mr Hall, however, questions whether the P&Z has the legal authority to regulate certain environmental aspects of development proposals.

The proposed regulations, which the P&Z modified after Mr Hall had raised concerns at a November 5 public hearing, cover the submission of environmental impact reports with applications. Such reports would address the pollution of air, water, and other natural resources.

Such documents would address environmental issues that are not covered by the Inland Wetlands Commission (IWC) during its environmental review of development proposals.

Issues that the P&Z would review would include: ecosystem fragmentation; plant and animal habitats; wildlife corridors; the inter-watershed transfer of surface water; forest ecosystems; natural resource inventories for development sites; species diversity; the presence of flora and fauna; threatened species; endangered species; food chain disruptions; diminished species populations; changes in predator-prey relationships; and broadly, the environment, public health, and public safety.

The rules would apply to the subdivision regulations and to the zoning regulations.

After Mr Hall pointed out on November 5 that the P&Z’s legal advertisement for the November 5 public hearing contained flawed terminology, the P&Z decided to legally advertise another hearing on the rules proposal for December 3.

Genesis

The P&Z’s interest in having environmental protection regulations stems from a Danbury Superior Court judge’s having sent to the P&Z for environmental review a resubdivision proposal which the P&Z had rejected in the past.

In October 2005, the P&Z unanimously rejected the 14-lot Hunter Ridge resubdivision project that is proposed for an environmentally sensitive 30-acre sloped site at 41-47 Mt Pleasant Road. The land lies between Mt Pleasant Road and Taunton Lake. P&Z members rejected the application, citing various concerns about open space aspects of the project.

Developer Hunter Ridge, LLC, then appealed that rejection in Danbury Superior Court in seeking to have a judge approve the project. But in June 2006, resident Spencer Taylor of 15 Taunton Lake Road entered the court proceedings as an intervenor, raising a variety of environmental issues, charging that the project would have adverse effects on the lake and nearby land.

A trial on the intervenor’s claims occurred in late 2008, with Judge Barbara Sheedy then sending to the P&Z some revised plans for the resubdivision in which the developer addressed various environmental concerns that had been raised by Mr Taylor.

The P&Z has yet to submit its recommendations on Hunter Ridge to Judge Sheedy, who retains final jurisdiction in the case.

George Benson, the town director of planning and land use, said the court has asked the P&Z to address such environmental issues, so it makes regulatory sense for the agency to have environmental rules. An environmental review should be part of the P&Z’s review of a given project’s design, he said.

The level of detail required in an environmental impact report would be dependent upon the characteristics of a site proposed for development, he said. Depending on the characteristics of a site, the cost for a natural resources inventory night range anywhere from $100 to $50,000, he said. “It has to be a site-by-site situation as to what [content] is going to be in the report,” he said.

Mr Benson said that the courts have limited the scope of environmental reviews that municipal wetlands agencies may perform in considering development applications. Such legal restrictions have created “environmental gaps” in the municipal land use review of development, he said. The proposed P&Z regulations would address such regulatory gaps, he said.

Mr Benson predicted that the P&Z likely would draw criticism for creating such regulations, but added that the environmental issues should be addressed.

Mr Benson noted that developers are now pursuing construction projects on land that is less desirable than the land that was developed in the past, so more environmental issues now come into play when development proposals are reviewed.

Ms Dean noted that many environmental issues facing development projects could be addressed when land use officials conduct “preapplication” sessions with developers before an actual application is submitted for P&Z review.

At the hearing, resident Mary Gaudet-Wilson of 12 Whippoorwill Hill Road thanked P&Z members for formulating the proposed environmental regulations as a way to protect local natural resources for future generations. Ms Gaudet-Wilson, who is a Conservation Commission member, said she spoke on her own behalf.

Also, Ms Gaudet-Wilson submitted a letter to the P&Z from Conservation Commission Chairman Joseph Hovious of 3 Leopard Drive, who wrote on his own behalf. In that letter, Mr Hovious supports the P&Z creating environmental protection regulations and suggests some modifications in the wording of the rules.

 

Opposition

Mr Hall said state law does not allow the P&Z to create the environmental regulations that it is proposing. State law does not allow the P&Z to function as a municipal environmental protection agency, he said. Thus, the P&Z should not seek to create such rules, he added.

Mr Benson said the P&Z is not seeking to become an environmental protection agency, but is seeking to collect information that would help it make informed decisions about development applications.

Ms Dean said that it is simpler for a developer to make design changes to a project in its early planning stages, rather than later in the planning process. Projects have been built in town which have caused unnecessary environmental damage, she said. Rules such as those proposed by the P&Z could prevent such problems from occurring, she said.

The proposed rules seek to have developers consider environmental issues before they design a project, Mr Benson said.

Ms Dean added that having such rules would serve to reduce the time involved in the local land use review process.

Mr Benson pointed out that Town Attorney David Grogins endorses the P&Z’s environmental protection rule proposal.

In view of Mr Hall’s repeated criticisms of the proposed environmental regulations, Ms Dean recommended that the P&Z review the efforts of towns that currently have such rules in force. Also, she recommended that the P&Z obtain a written legal opinion from Mr Grogins on the advisability of having such rules.

“I want to be able to defend this completely,” Ms Dean said, adding that the P&Z should have a firm legal underpinning for such regulations if those rules should be challenged in a court appeal.