Groton Open Space Association

Groton ZC Hearing Set For Jan. 5, 2011; Staff Spurns State Expertise

GROTON — The Zoning Commission’s hearing on a regulation update continues Jan. 5  following a surprising first session Dec. 1, 2010, in which town planners treated with disdain and ridicule a state official who had offered the town assistance in framing measures to promote low impact development (LID).

 The conduct of Michael J. Murphy, head of the Office of Planning and Development Services, and Matthew J. Davis, planning manager, drew criticism from several  commission members. GOSA called the display by Mr. Murphy and Mr. Davis both “rude” and “deplorable.”

 Mr. Murphy told the commission that if he ever needed help from the state he would not ask for it from David J. Kozak, the DEP senior coastal planner, Office of Long Island Sound Programs, who had just finished presenting ideas about how to encourage LID.

 “Our level, I’d be talking to Mr. Thompson, right, other people–other than talking to Mr. Kozak,” Mr. Murphy said.  He did not explain why his level would rule out consultation with Mr. Kozak. Brian P. Thompson is director, Office of Long Island Sound Programs.

 Mr. Davis contributed in the same vein, after saying he wanted to inject what he called a “positive” note. Mr. Davis said he was looking forward to “educating” Mr. Kozak about Groton. “[A]pparently Mr. Kozak is operating I think either with some misdirection that has been provided to him by some parties or just out of a sense of general ignorance in terms of how we do things here in Town of Groton.  So that’s what I’m looking forward to.”

 Main point of Mr. Kozak’s written report and spoken remarks to the commission was that the proposed amendments should be modified to “provide greater guidance and, possibly, incentives for developers to adopt those LID practices and stormwater controls that will minimize stormwater run-off volumes and employ non-structural methods to treat targeted stormwater pollutants entirely on-site, to the extent possible.”

 Mr. Kozak listed the main principles of LID development as:

 –Minimizing site disturbance

 –Working with existing site elevation contours and hydrology

 –Minimizing and disconnecting impervious surface

–Applying small-scale water quality controls nearest the source of pollution. (He said a canopy of trees often is the best stormwater management method, beating out engineered solutions.)

 Incentives could include density bonuses, accelerated site plan review periods and reduced application fees.  He added that the DEP has provided tens of thousands of dollars to Farmington River towns for requiring that developers include a certain amount of LID in their plans.

 He said the proposed Groton regulations’ requirement that developers work according to the State’s 2004 Stormwater Quality Manual did not guarantee effectiveness. If adherence to the manual were enough, he said, “you’d have seen a lot of change over the last seven years, but frankly we haven’t seen that much improvement off the coast.” He said, “I can come back to work with you.”

 When Commissioner Robert O’Neill expressed fears about Groton going beyond the advice of the 2004 manual, Mr. Kozak said a half dozen Connecticut towns have compiled their own stormwater management manuals, tailoring state concepts to local conditions.

 Mr. Kozak maintained a mild demeanor despite the comments of  Messrs. Murphy and Davis. He said his purpose was to offer to share the specialized resources of his 30-person coastal staff with the busy Groton OPDS, which had to deal with a broad variety of matters. The OPDS had submitted the proposed changes to the DEP for review. After listening to the remarks of Mr. Murphy and Mr. Davis, he left the room quietly without further comment.

 Stephen Hudecek, Zoning Commission chairman, urged Mr. Murphy to give consideration to Mr. Kozak’s suggestions. Mr. Murphy said he would do that so long as they are within the scope of the amendments proposed and make sense in the Groton context. He did not comment on the substance of Mr. Kozak’s paper and talk, other than to say that his staff was familiar with the concepts Mr. Kozak brought up.

 Commissioner Mariellen French reacted to the hostile tenor of Mr. Murphy’s comments. She said Mr. Murphy’s conduct reminded her of advice she’d just read for choosing a new veterinarian. She indicated that if the prospective vet says he won’t consult others when facing a problem he’s not sure how to solve, it is wise to move on to a vet who will consult. She said she was “really disappointed” that Mr. Murphy would spurn an offer of state help.

 Mr. Murphy replied by repeating his frequently expressed opinion that Mr. Kozak should have stuck strictly to performing a “consistency review” of the proposed regulations, which concern stormwater management, erosion and sediment control, surfacing and drainage, and landscaping. Mr. Kozak’s report said the proposals of the OPDS were “consistent” with the “goals and policies of the Connecticut Coastal Management Act,” but he recommended modifications of the amendments. Mr. Murphy interspersed remarks critical of Mr. Kozak with apparently ironic sentiments like, “It’s a great thing he came down here to explain his comments.”

 Mr. Hudecek, chairman, reminded staff that persons appearing before the commission should be treated with respect. Commissioner Susan Marquardt said she felt staff had not shown proper respect. 

 The draft minutes of the Dec. 1 meeting, prepared by staff, responded to criticism of their conduct by saying: “Staff attempted to explain their actions were based on their professional obligation to defend the legitimate process in terms of the rights and responsibilities of the DEP and the Town in this specific type of proceeding, versus those of private citizens participating in a hearing on zoning text amendments.”

 In a letter to Mr. Kozak dated Dec. 2, 2010, GOSA Vice President Sidney Van Zandt said the organization was “still cringing from the rude, deplorable behavior of Mike Murphy and Matt Davis yesterday evening.” Ms. Van Zandt, writing on behalf of GOSA, thanked Mr. Kozak for his visit. GOSA was not aware in advance that Mr. Kozak planned to make an appearance.

 Main features of the proposed update being considered by the panel are a new separate section in the Zoning Regulations specifying points that must be dealt with in a developer’s stormwater management plan; rewritten and expanded requirements for information in a developer’s plan for controlling erosion and sediment; environmental protections in parking areas; and the  specification that new vegetative landscaping for all but single-family detached houses should be limited to native, non-invasive plants. Some provisions of the new Zoning regulations would be administered by the Planning Commission.

 Other participants in the hearing included the Groton Open Space Association, with its own statement and an analysis by Trinkaus Engineering; Ed Martin, chairman of the Shellfish Commission; Ms. Van Zandt of Noank; and Ray Munn, a member of the Planning Commission.

 GOSA presented a statement asking that Connecticut General Statute 8-2 (b) found in Chapter 124, on Zoning, be reflected in the new regulations. This section reads as follows:

 (b) In any municipality that is contiguous to Long Island Sound the regulations adopted under this section shall be made with reasonable consideration for restoration and protection of the ecosystem and habitat of Long Island Sound and shall be designed to reduce hypoxia, pathogens, toxic contaminants and floatable debris in Long Island Sound. Such regulations shall provide that the commission consider the environmental impact on Long Island Sound of any proposal for development.

 GOSA asked that Groton’s special responsibility as a coastal town for the health of the Long Island Sound be acknowledged in the introduction to the Groton Zoning Regulations. It also asked that the second sentence of the section be included in the regulations of  both Zoning and Planning Commissions. The subject of 8-2 (b) had been brought up by Commissioner French at the October Zoning Commission meeting, and staff had said it would study the matter. A scheduled Nov. 3 meeting at which it was to be discussed was cancelled.

 On Dec. 1, staff handed out its analysis of the 8-2 (b), which was made law in 1991. It said that based on “legislative history,” it found that 8-2 (b) was “an outdated general mandate” and was intended as a “place holder” pending more specific DEP guidance. Mr. Murphy said also that that it was merely “enabling” legislation. Mr. Murphy and Mr. Davis cited a number of steps the town has taken, including sewage treatment upgrades and testing of stormwater at certain outfalls, as evidence of Groton’s efforts to minimize the potential impact of development on the Sound.

 GOSA replied at the hearing that it, too, had seen the legislative history of 8-2 (b) and saw nothing in that history to invalidate the law. Since the hearing, legal experts have told GOSA that (1) legislative intent is consulted only when laws are unclear, internally contradictory or inconsistent with other laws and (2) legislative intent normally is determined only by examination of legislators’ statements on the floor of the legislature. The Murphy-Davis analysis was based on a statement in a public hearing by Adrian Freund, at the time Chief of the Bureau of Water Management at the DEP. Mr. Freund said the measure was an “important first step.” Mr. Murphy did not explain why the word “shall” in the second sentence of the regulation could be interpreted as merely “enabling,” rather than mandatory.

 The office of state Sen. Andrew Maynard, which Mr. Murphy and Mr. Davis cited as the source of the documents used for the legislative history, said in reply to an inquiry that it had no discussion with the OPDS regarding interpretation of the history.

 Mr. Murphy said GOSA’s comments on 8-2 (b) were “beyond the scope” of the amendments that were being considered. He had the same assessment concerning many of Mr. Kozak’s remarks; Mr. Martin’s talk on the positive correlation of cove pollution with the amount of impervious surface in surrounding areas; and discussion of drinking water issues. Mr. Munn commented that he felt that Mr. Martin’s talk had received too little attention.

 GOSA presented a report by Steven Trinkaus of Trinkaus Engineering, LLC of Southbury. His report made some of the same points listed by Mr. Kozak, including that that general references to the 2004 DEP stormwater manual did not provide adequate guidance to developers. Mr. Trinkaus’s seven-page report also called for clearer and/or stronger language concerning such matters as erosion and sediment control plans for sensitive sites, the proper scale for engineering plans (e.g. plan inches per ground foot), and developers’ bond requirements. Both Mr. Trinkaus and Mr. Kozak noted that the  changes proposed are only a part of the many land-use regulation updates that are planned. It would be appropriate to have a comprehensive package to evaluate, they said.

 Ms. Van Zandt reviewed the flooding that occurred in Old Mystic last March and the breakup of the culvert under Route 184. She said the town should “offer guidelines for developers who want to come to our town…that protect our most valuable resources, namely our drinking water and our saltwater estuaries, and minimize flooding.”  

 GOSA urged that the OPDS heed the Dec. 1 input on issues of concern and incorporate appropriate responses into future proposed amendments. It also asked Commission members not to limit their role to commenting on the wording of amendments framed by the OPDS but to contribute creatively to the land-use regulation rewriting process.