IWC Seeks Legal Opinion on Outside Consultants

The Inland Wetlands Commission (IWC) wants to clarify its use of third-party consultants when reviewing complex project applications. This is in response to the confusion that resulted last spring during the Costco public hearings.

“We had an interesting spring, with issues around the use of third-party consultants,” said IWC chairman Peter Bassermann. ​“And before we have an application in front of us where we may need to bring in a third-party consultant, I thought it would be worthwhile having a discussion.”

The question of third-party consultants became an unexpected factor during the IWC public hearings for the proposed 44-acre Costco commercial complex at Exit 56. Costco’s attorney Tom Cody asked the commissioners not to consider the consultants’ March 9 review, and refused to pay for additional reviews of Costco’s revised plans. Cody pulled the application in April, saying he had ​“specific concerns about the manner in which this application has been reviewed and processed by staff.”

Others involved in the hearing said there was nothing inappropriate in the work conducted by staff and the consultants, Milone & MacBroom Inc. a well-respected firm that has handled many town projects. 

At Thursday’s IWC meeting, Bassermann said he wants something in writing to clearly define the third-party consulting process for the commission and the applicant. ​“I’d like to do that before we’re in the heat of the moment with a particular application that we face,” he said.

It is anticipated that Costco and the other developers will re-submit their applications. They will face a markedly different IWC since First Selectman Jamie Cosgrove removed six of the 10 members whose terms expired during the past year, despite their desire to continue serving.

New Parkside Village Housing

In other business Thursday, the commission unanimously approved a permit requested by the Branford Housing Authority regarding the redevelopment of Parkside Village 1 at 115 S. Montowese St. The apartments are designated for low income seniors and people with disabilities.

The Planning and Zoning Commission will hold a public hearing at Canoe Brook Senior Center tomorrow, Sept. 15 at 7:00 p.m. on the project. The Housing Authority must have all approvals complete by November to utilize federal funding for the project.

Neighbors who live near the Parkside apartments voiced concerns about the project at a recent Housing Authority meeting and many plan to attend the P & Z hearing this Thursday.

David Golebiewski, president of TPA Design Group in New Haven, outlined the project. He said one building containing 71 units will be constructed, and the three current buildings with a total of 50 units will be demolished. The work will be done in phases, with building A being demolished first. Tenants will be moved to other apartments.

Golebiewski, pictured above at right, said there are no wetlands on site, but the IWC permit is needed in regard to stormwater drainage. He said most of the stormwater currently washes onto the adjacent Sliney Park ball fields. He said plans call for a proposed state-of-the-art drainage system. ​“Most of the water will be infiltrated on site,” he said, adding that new underground pipes will drain the stormwater from Parkside I and 2 to an existing wetlands area.

“It sound to me like a reasonable approach,” said commissioner Richard Greenalch.

Seeking Clarity on Consultants

At last week’s hearing, Bassermann told the commissioners, ​“I’d like to get any and all input on this topic and we may need to get professional advice on this as well, but I’d like to get your thoughts first.” 

He said the most likely scenario when the commission needs consultants would be ​“to augment an expertise that we don’t have.” He described what the relationship between the commission, staff and consultants would be like. ​“It’s kind of an extension of the commission, and that a third party would have to be tightly aligned with staff to make sure they’re representing the staff and this commission accordingly. There needs to certainly be communication that would be apparent and visible and would involve the applicant, but it’s an extension of the commission.”

Bassermann said a less common scenario might be when a consultant would be hired for a ​“third-party objective view” when there is conflicting expert testimony. He said ultimately, the final decisions are up to the commission.

The commission typically advertises for consultants and does the hiring, and the applicants pay the fees.

Diana Ross, the Inland Wetlands Environmental Director, said that according to the state Department of Energy and Environmental Protection (DEEP), IWC commissions can bill applicants when consultants are needed to advise on complicated applications that would require experts, such as a soil scientist, engineer or ecologist. Ross is pictured above handing out materials.

Commissioner Eric Rose, a builder, said it may be necessary to identify what triggers would require hiring a consultant.

“If a commission doesn’t feel competent enough to assess something, then that’s when you would hire experts,” Ross said.

Ross also said if there are qualified experts on the commission, they may offer their expertise as long as they present their qualifications before speaking on the issues.

Commissioner Merle Berke-Schlessel asked if commissioners would still be permitted to vote if they serve as experts. She said in a court of law neither the judge nor jury has any expertise but they make decisions based on expert testimony and evidence.

Teaching the New Commissioners

“Wetland commissions are different than a court of law,” Ross said, explaining that there is case law regarding commissioners serving as experts and voting.

Peter Black, an attorney and member of the Representative Town Meeting, who arrived at the IWC meeting, cited another case. He said it may contradict commissioners offering expert testimony, but he did not have a copy of the case with him.

“I believe that we are a lay commission,” Berke-Schlessel said, adding that the commission should rely on third-party consultants if needed.

“We are a regulatory commission,” commissioner Suzanne Botta replied. ​“We are bound by state statutes; we are bound by case law.” She said case law supports commissioners using their expertise and that it becomes part of the record. ​“That’s how we make our decisions, based on the record,” Botta said.

Berke-Schlessel, who is an attorney, said she would like to read the case law because she believes that having commissioners testify and also vote could be ​“problematic.” 

Commissioner Rose said there needs to be a definition of what is technically complex because otherwise ​“it’s a slippery slope.”

Ross said applications differ vastly, so it may be difficult to define ​“technically complex” to cover all applications.

Bassermann said it is usually apparent when a consultant is needed. However, he said it may be necessary to ask town attorney Bill Aniskovich for his input on the issues. Aniskovich does not specialize in land-use law but Attorney Carolyn W. Kone, a member of his firm, does. 

Berke-Schlessel also suggested asking Aniskovich for advice.

Ross said in the past the commission would typically ask the town attorney to write an opinion to resolve questions.

“I’ll further the conversation with Bill and see if we can get a draft of something that we all can look at,” Bassermann said.

Ross also suggested the new commissioners take advantage of training that is offered on the state level.

Costco Questions

Developers had big plans for the 44 acres at Exit 56, including the construction of a Costco warehouse store and seven other commercial buildings. The 158,070 square-foot Costco would be built on 22 acres owned by Wayne Cooke and the Cooke family corporations. Six buildings were proposed for a 16.5 acre site owned by Charles E. Weber Jr. and Al Secondino, and their 595 Corporate Circle corporation. One building was proposed for a 1.7 acre site owned by trustee Peter G. Mandragouras.

The IWC public hearings began in January and ended in April. Prior to the final hearing, Costco’s attorney submitted a letter saying they would not pay additional fees for a final report from the third-party consultants, or for any consultants to attend the next hearing. Cody’s letter said he had concerns about the process used to compile the March 9 consultants’ review letter.

At the final session of the 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 consultant’s review letter when they deliberate. He said allegations had been raised that there had undue influence on the consultants when that review was compiled. He did not object to the December and January review letters.

The March 9 review letter, which was 15 pages long, questioned the size of the Costco warehouse and stated a smaller building would have less impact on wetlands and watercourses. The third-party consultants said many issues had been adequately addressed, but there were still remaining concerns, including ​“potential feasible and prudent alternatives” to the project.

Cody pulled the application April 26, just two days before the commission was set to vote on the Costco project. Cody stated in a letter: ​“We have previously expressed to the Commission specific concerns about the manner in which this application has been reviewed and processed by staff.”

Engineers from Milone & MacBroom sent a written objection to the allegations, stating 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.”

In addition, Attorney Keith Ainsworth, who represented interveners who opposed Costco, said the interaction of MMI and town staff was an ​“ordinary, proper and legal function of the Commission.” 

The controversy began March 21 when the Branford Seven blog site made allegations that Inland Wetlands personnel had undue influence on the March 9 review letter. 

On March 24, First Selectman Jamie Cosgrove issued a statement saying the town would begin ​“a careful review of the issues and information raised in the recent press report regarding the conduct of certain individuals involved in the Costco wetlands application process.” The results of that review have never been made public, despite questions from residents and the media over nearly six months.

Not The Same IWC

With the exception of three sitting members, the IWC has virtually been stripped of its expertise and experience over the past year . Cosgrove removed six of the 10 members whose terms expired, despite their desire to continue serving. 

Those removed in August 2015 were Dr. Richard Orson, one of the state’s leading experts in wetlands issues; Dr. Wesley Vietske; and Leo Stanlake. In June 2016, Cosgrove removed Chairman Danny Shapiro, who served more than 20 years; James Killelea; and Stephen Gangi. There was one vacancy due to death, so only three of the 10 people who were serving last summer are still on the IWC — - Peter Bassermann, who now chairs the commission; John Rusatsky, and Suzanne Botta. 

Shoring Up a Branford Land Trust Trail

The commission also listened to a presentation by Matt Reed of the Branford Land Trust. Reed said they would like to place a small permanent walking bridge on a muddy area of land at the newly acquired Red Hill Woods. The area is part of the Branford Trail System.

Reed said there was some type of bridge there in earlier years and Land Trust members have used a temporary structure which they made from cedars and hemlocks logs. He said they would like to anchor it permanently. It would be about 200 feet long at most.

Reed said they want ​“something under your feet that’s predictable,” so people can enjoy the wooded area without losing their footing.

Bill Horne, who is a member of the Land Trust, said the trust would maintain the bridge as part of its stewardship program.

The 29-acre parcel is located at the end of Red Hill Road on the eastern end of town, south of I‑95 and north of the 406-acre Stony Creek Quarry Preserve, which is owned by the town of Branford. 

Since the request was newly received, the IWC can’t vote on it until the next meeting.

In other business, the commission unanimously approved a request by the Regional Water Authority to install 13,400 linear feet of water main pipe along Laurel Hill Road, Piscitello Drive and Queach Road. The plans also include a new pump station and replacing a water storage tank.

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