Costco Public Hearing Ends on Sour Note

The Costco public hearings that began in January ended near midnight Thursday after clashing testimony from both sides, ranging from highly technical scientific debate to reactions about allegations of impropriety.

The main question that remains is— whether the 44-acre commercial complex proposed near Exit 56 adversely impact the wetlands on the site.

The Costco team says there won’t be an adverse impact; and the opposition says there will — and they are asking Costco to provide alternatives to reduce the size of the project.

It’s now up to the seven-member Inland Wetlands Commission (IWC) to look at the facts and make a decision on the project. That won’t be a simple matter since Costco’s attorney asked them to exclude a report submitted last month by outside expert consultants who were hired by the IWC to review the mountains of technical documents and testimony.

About 75 people attended Thursday’s hearing at Fire Headquarters. No one from the public offered comments at this session, but several people submitted written testimony prior to the hearing.

The IWC will begin deliberations at a special meeting April 28. Regulations require a decision be reached within 35 days after a public hearing closes.

The case before the commission includes lengthy hours of testimony from attorneys and experts; PowerPoint presentations; and volumes and volumes of paperwork including legal briefs, scientific documents, comments from the public, and photographs and charts. Much of the information, including transcripts from the hearings, is posted on the IWC web site.

Two Empty Chairs

What the record doesn’t include is a final report and testimony from the peer review consultants hired by the IWC to provide expert assistance. Engineer Darin Overton and wetland scientist Bill Root both of Milone & MacBroom Inc. (MMI) have been reviewing plans and testimony throughout the hearing process, and they attended the previous three hearings. As is customary, consultants were hired by the IWC but their fees were paid by the applicants – Costco Wholesale,Inc. Milone & MacBroom is one of the largest consulting firms in the Northeast. It is headquartered in Cheshire, with offices in Maine, Massachusetts, New York, Vermont and South Carolina.

In an April 7 letter submitted for the record, Costco’s attorney Thomas Cody said they would not pay additional fees for a final report nor would they pay for MMI or any other peer review consultants to attend the final hearing. Those fees would have been about $7,200. Cody’s letter said he had concerns about the process used to compile the March 9 peer review letter.

At Thursday’s hearing, Cody, a partner in the law firm of Robinson & Cole in Hartford, asked the commissioners not to consider any issues from the March 9 peer review letter when they make their deliberations. He did not object to the December and January peer review letters.

Commissioner James Killelea asked Cody for the basis of the objection.

“Our basis for the objection, Commissioner Killelea, is that the March 9 letter is signed by a professional engineer and a professional wetland scientist, and what the draft, and the edits to the draft indicate, are that other people had impact on this letter,” Cody said. ​“Now we don’t know really who exactly they were, because they are not specifically identified in any materials that we’ve seen. But what is clear is that what comes out on March 9 is different than what had been prepared on March 7. So we believe that this creates a question about the opinions that are expressed in there.”

Attorney Keith Ainsworth, who represents the Branford Citizens for Responsible Development (BCRD), addressed the issues in a brief he filed and in his remarks at the hearing. Ainsworth disputed questions that were raised about ​“some impropriety in the interchange” between town staff and the peer review consultants. Ainsworth told the commission: ​“There’s been no statute cited, there’s been no case law, no regulation, no code, no legal standard that’s been cited that anything inappropriate happened.” 

Ainsworth said it is typical procedure in the scientific process that ​“people share information and go through drafts and suggest alternative viewpoints.” Ainsworth did not meet with MMI with regard to this project. 

The allegations were raised in an article last month by the Branford Seven blog site.

A letter dated April 13 and filed by MMI engineer Overton stated that the consultants ​“take exception to any innuendo or statement that any of our work may have been coerced. We have followed typical procedures in conducting our work, used professional judgment in providing our opinions, and stand behind the work that we have conducted as part of this process. The changes to our last review letter were primarily editorial in nature, were not substantive, and did not affect our technical position. Since we will not have the opportunity to provide a final review of any changes to the plans, we cannot provide any assurance that our technical concerns have been adequately addressed.”

On April 7, the Costco team filed a revised set of plans — the fourth set of revisions since the original plans were filed. The team also submitted a series of 19 documents with responses to issues and questions raised by the commission, attorneys and consultants for the intervenors, the peer review consultants, and the public. The revised plans submitted by Costco on April 7 were not reviewed by the IWC’s consultants.

What Size?

The peer review consultants questioned the size of the Costco warehouse in their March 9 letter, and stated that a smaller building would have less impact on the wetlands and watercourses.

The same premise has been stated by Attorney Ainsworth, who represents the BCRD, a citizens group that was granted official intervener status.

The Costco proposed for Branford would be 158,070 square feet. Ainsworth said the proposal calls for removing too much of the buffers surrounding the wetlands, which would adversely affect the wetlands.

On Thursday, Ainsworth said a proposed Costco that was recently approved in Old Lyme would be 138,000 square feet. He said if that size were built in Branford, it would allow for greater buffers to protect the wetlands.

Costco’s attorney Cody disputed Ainsworth’s remarks about the East Lyme warehouse. Cody said the Branford warehouse is measured in gross square footage, but that East Lyme officials use a net floor-area measurement, not gross square footage.

“We haven’t misled you at all,” Cody said in regard to the size of the East Lyme building. He said that warehouse would be 158,800 gross square footage, making it ​“almost the exact same size” as the one proposed for Branford.

Feasible and Prudent

According to local and state regulations, inland wetland commissions must determine whether a proposed project will have an adverse impact on wetlands and whether there is a feasible and prudent alternative that would cause less impact.

Michael Klein, a wetlands scientist with Environmental Planning Services LLC of West Hartford, who represents Costco, said there is no need to provide alternatives because there is no adverse impact. He said wetland disturbance will be mitigated by enhancing existing wetlands or creating new ones.

“There is no feasible or prudent alternative with less impact. One of the important reasons for that conclusion is that there are no significant adverse impacts on wetlands on or off the site,” Klein told the commissioners. ​“All reasonable mitigation efforts that we could come up with were incorporated into the plans.”

Klein said five recent suggestions for altering the plans would reduce disturbance in the buffer areas. ​“In total, those five alternatives result in a reduction of just under 10,000 square feet of disturbance in the upland review area (buffers), and save 18 trees.”

None of the five alternatives reduce the size of the proposed Costco warehouse.

Daniel Shapiro, the chair of the IWC, stated that the five new alternatives were just recently submitted. ​“The intervenors haven’t had time to vet it, and Milone & MacBroom hasn’t vetted it.” MMI didn’t vet the new alternatives because Costco’s attorney said they would no long foot the bills.

Shapiro continued: ​“I wouldn’t advise the commission to accept an alternative at this late date that hasn’t been fully vetted by intervenors and the public. Maybe it’s an improvement in the upland review area, but who knows what else is wrong with it,” he said.

“We’re very disappointed by your skeptical opinion about attempts to make the application better,” Cody said, adding that the ​“The March 9 (peer review) letter asked us to do this, so we did.”

De-Icing Debate & Fractured Bedrock Fracas

Steven Trinkaus, of Trinkaus Engineering LLC of Southbury, who represents the BCRD, said de-icing chemicals containing chloride that are commonly used on roads and parking lots can cause ​“direct adverse impact to wetlands.” He said this would be problematic for the Costco commercial complex because of the number of wetlands and buffers on the site; and the proposed amount of pavement.

Trinkaus also disputed claims by the Costco team that it will be possible to create infiltration basins to reduce the volume of stormwater leaving the site. ​“It’s not going to happen in my professional opinion,” he said in regard to infiltration.

Attorney Timothy Yolen, who represents the Branford Land Trust, also expressed concern about the impact of de-icing. Yolen said he wants the applicants to use ​“best-management practices” when it comes to the application of de-icing materials.

In his rebuttal, Costco’s attorney Cody said the criticisms of the project ​“are entirely in the realm of speculation.”

Costco’s wetland scientist Klein said ​“we are a very small portion of a watershed” and that road crews and other businesses use chlorine based de-icing chemicals.

Costco spokesman Joe Montesano also spoke to the de-icing debate. ​“We will only apply de-icers when necessary…that’s absolutely best practices.”

Muriel Robinette, a senior environmental hydro-geologist hired by the Costco team, said they conducted multiple test pits, borings, lab tests and permeability tests to design the stormwater management system. She said permeability tests showed that areas of fractured bedrock at the site can infiltrate stormwater.

“The fractured rock in effect serves as a drain,” Robinette told the commission. She said testimony that basins would not infiltrate ​“is completely erroneous.”

She said not all areas of the 44-acre site contain fractured bedrock.

Costco’s engineer Michelle Carlson of BL Companies in Meriden, said the stormwater management system complies with Branford regulations and there would be no adverse impacts. ​“We feel that we have a sound design based on sound engineering.”

Commissioner Suzanne Botta asked several questions.

Commissioner Killelea asked Carlson if the square-footage of the Costco warehouse stayed the same for all the alternatives.

“That’s what we worked with,” Carlson said.

Overall, Cody was in charge, and at times refused to allow his experts to answer certain questions. 

What About Weber’s Plans?

About 40 minutes Thursday was spent discussing the plans for the remainder of the 44-acre Planned Development District. 

The proposed Costco would be built on about 22 acres owned by Wayne Cooke and the Cooke family corporations. Six buildings are proposed for a 16.5 acre site owned by Charles E. Weber Jr. and Al Secondino, and their 595 Corporate Circle corporation. One building is proposed for a 1.7 acre site owned by trustee Peter G. Mandragouras. Weber and Secondino attended the Thursday hearing.

While the occupants of the seven buildings have not been identified, one of Costco’s engineers said the team has been talking to various prospective occupants. “There are deals that are being discussed and contemplated,” Carlson said. 

Another Weber and Secondino corporation, Orchard Hill Partners LLC, has a contract option to purchase the Cooke family parcel where Costco is proposed to be built. The option for 21 acres of Cooke land, appraised at $3 million, is in effect until March 29, 2017.
The IWC will make a decision on each of the three parcels where development is proposed, since hearings were held individually on each property.

Who Rules?

Six of the seven IWC commissioners were present Thursday: chair Daniel Shapiro, John Rusatsky, Suzanne Botta, Peter Bassermann, James Killelea, and James L. Goggin.  Commissioner Merle Berke-Schlessel was absent, and also missed the previous hearing.  Two alternates will not be eligible to vote since one recused himself for possible conflict of interest, and the other has not attended the hearings. A third alternate position is vacant.

There are several possibilities ahead. The commission could approve or deny the applications. If approved, the applicants must then submit site plans to the Planning and Zoning (P&Z) Commission, at which time additional public hearings would be scheduled.  The Planned Development District (PDD) and Master Plan were approved by the P&Z July 9 by a 3-2 vote.

One additional possibility is that the Costco team could pull the applications before a vote is taken, perhaps to make major revisions to the plans or for some other reason. The original plans were submitted to the IWC in September and the hearings were scheduled to begin in November. However, the Costco team pulled those plans prior to the November hearing, made some minor changes, and resubmitted them. Costco at that time said their action would re-set the statutory clock and give the commission and the peer review consultants more time to review the plans. 

Regardless of whether the IWC approves or denies the application, there are options for appeals to be filed in state Superior Court. 

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