Groton Open Space Association

GOSA Asks IWA To Reconsider Four Winds Case

GROTON–The Groton Open Space Association has asked the Inland Wetlands Agency to reconsider the application of Mystic Active Adult LLC to build the Four Winds over-55 community on property off Noank-Ledyard Road.

GOSA made the request to David Scott, chairman of the IWA. Mr. Scott said at the IWA meeting May 10, 2006, that the IWA had no mechanism for reopening a hearing once a decision had been made. He said he would reply to GOSA in writing.

In its request, GOSA cited the timing of the state Supreme Court’s Avalon Bay decision, which was applied retroactively by the Superior Court in dismissing a GOSA appeal of the IWA’s conditional approval. GOSA said that the timing deprived GOSA of the chance to make certain arguments that only later became relevant, as explained below.

The IWA currently is appealing to the state Appellate Court a Superior Court ruling against conditions the IWA imposed on its approval of the project. The Superior Court upheld the developer’s appeal against the conditions. The developer’s appeal was entirely separate from GOSA’s and was opposite in its intent.

GOSA also reminded the IWA that GOSA is an intervenor in the application and needs to be kept informed of developments in the case and must be included in any settlement discussions associated with the developer’s appeal.

Following is the text of the letter sent to Mr. Scott by GOSA President Priscilla Pratt:

The Groton Open Space Association requests, for the reasons explained below, a reopening of hearings on the application of Mystic Active Adult LLC to build the Four Winds “Residential Life Care Community” on 105 acres of the 160-acre Watrous property.

We feel the case involves important, unaddressed questions about the application of the AvalonBay Supreme Court decision. These need airing and they have significance not only for Groton but also for the entire state.

GOSA, an intervenor in this case under C.G.S. 22a-19, appealed the IWA’s conditional approval June 25, 2003, of Four Winds at Mystic. The GOSA appeal was denied by the Superior Court, and the Appellate Court declined to hear GOSA’s appeal of the Superior Court decision.

The Superior Court had ruled against GOSA in large part because of the AvalonBay decision. The Supreme Court decision, officially released Oct. 14, 2003, came months after the IWA approved the Four Winds project.

GOSA believes that the timing of the IWA hearings–i.e. prior to the Supreme Court decision–had the consequence of depriving GOSA of the opportunity to present arguments that could have taken AvalonBay into account. GOSA did not address AvalonBay in its presentations because the court decision did not yet exist. Had we been able to do so, we could have demonstrated how our objections to the project were legally valid even post-AvalonBay.

As you know, AvalonBay essentially prevented inland wetlands agencies from taking wildlife into account in their deliberations unless wildlife could be shown to be relevant to the physical quality of wetlands and watercourses. Prior to that, it appeared possible to argue for the protection of wildlife for its own sake, and that is what GOSA did. We now submit that it is not in the interest of fairness and justice to expect GOSA to have argued in terms of the AvalonBay decision, which did not yet exist.

GOSA held in its Feb. 15, 2004, brief to the Superior Court that the IWA’s conditional approval didn’t afford adequate protection to the Watrous property’s extraordinarily rich aquatic wildlife.

Judge Purtill, who ruled against GOSA, apparently agreed. Here is what he said:

“Although the plaintiffs [GOSA] are correct in their argument that condition fifteen [road closures] is inadequate to protect the wildlife, inadequate protection of wildlife does not invalidate an inland wetlands agency’s decisions because such considerations fall outside the agency’s jurisdiction.” He based this assertion of agency powerlessness on the AvalonBay decision. (See pages 27, 28 and 29, of Judge Purtill’s Memorandum of Decision on GOSA’s appeal. Judge Purtill’s memorandum is dated April 13, 2005.)

GOSA should be allowed the right to argue, using expert testimony, that wildlife–including wood frogs and salamanders–protects the physical quality of water in the Watrous wetlands and vernal pools and thus should be protected. Adequate protection would include elimination of Crossing A and the connector road, in our view, and not merely enforcement of the road-closing schedule.

GOSA would contend that wood frogs and spotted salamanders positively affect the physical properties of the water by promoting the export of biomass (leaf litter and small invertebrates, respectively), leading to higher oxygen levels in the water than would be the case if the biomass remained in the pools and decayed. Export of biomass also tends to preserve the depth of pools, leading to cooler, more healthful water temperatures. The presence of healthy predators reduces the risk that pools will become breeding grounds for mosquitoes.

These are important issues that you did not hear about because AvalonBay did not exist as a judicial decision at the time you dealt with the Four Winds case. Indeed, Judge Purtill noted in his memorandum that the hearings “record contains no evidence of the possibility of” a physical impact on a wetland or watercourse (page 16 of memorandum). This lack of evidence stemmed from the absence of any legal decision requiring it to be in the record–and not from a lack of scientific findings that could have been used to substantiate a physical impact, if such substantiation had appeared necessary to make a successful case.

Summarizing: we ask for a chance to appear before the IWA again. In a matter that has statewide importance due to the AvalonBay Supreme Court decision, GOSA was deprived of the opportunity to present important evidence that wildlife affects water quality.

In addition, we remind you that GOSA remains an intervenor in the matter with an interest in any argument or settlement discussions related to the developer’s active appeal (No. 566502) of the IWA permit granted June 25, 2003, and asks you to keep GOSA apprised of any development in the matter, as required due to its status as an intervenor.