Protect the Partrick Wetlands
and our Community

Arguments During the Second Hearing

The neighbors surrounding the Partrick Wetlands have formed a non profit organization. We are called the Partrick Wetlands Preservation Fund. We have retained counsel and we as a cohesive and determined group are prepared to follow this through these hearings, future hearings and into the courts where this will ultimately be decided. We are determined not to allow these precious wetlands to be disturbed, animal habits destroyed or our aquifer to contaminated by development which has no place even being considered for this piece of open space.

Tonight we will offer a multi-tiered presentation by select individuals in defense of the land, habitats, groundwater and aquifer. But I will remind this commission again, that is not our burden to prove anything, it is not the commissions burden to prove anything, it is the burden of the applicant to show that they will not harm the wetlands, that they will not harm the animal habitats, that they will not release contaminants into the groundwater, that they will not place our community in jeopardy by their actions. They are guilty until proven innocent. If you have the slightest doubt then you must side with protection and conservation. You must hold them to this higher level. And to this point they have not proven anything.

John Kennedy could not attend this evening's hearing so I will read part of his presentation:

He lives with his wife and family at 4 Partrick Road and abuts the Partrick Wetlands. He is an attorney by trade.

To the Conservation Commission:

(1) there has been no competent, independent, detailed study of the potential impact of all of the proposed regulated activity on the site as that activity may affect water quality in the aquifer and surrounding wells and

(2) there is a known, documented risk of contamination hazards on the site that is the result of years of dumping by the Town and others as well as earlier commercial activity on the site. As a result, there should be no further work done on the site until such a study has been completed and reviewed by appropriate governmental agencies at the local and state level (and, if there is jurisdiction, by federal authorities such as the EPA).

In addition, the Conservation Commission should add as a condition to any approval that the developer post a bond, create a fund, or otherwise insure that there will be appropriate assets to address subsequent environmental and pollution claims that arise out of the approved regulated activity. That is, a developer in this situation should not be allowed to "skip town." The notion that homeowners' association bylaws and "oversight" by the Conservation Commission would adequately protect the wetlands and those on well water once this project is built is not even worth considering--in the world of tort law, it would be deemed gross negligence. And if there are water quality contamination and health problems as a result, the liability will come back to the Town, no matter what the "Reserve" bylaws say.

Thank You,

John Kennedy.

Let me add a few more of my own issues to the record before I sum up.

1. Borings
The Westport buildings department in a request to P&Z that borings be done at each house site to see what's there. I'd suggest that these borings be done prior to conservation approval. I'm amazed that it has not been requested by this commission. No one knows what's on this land so how do we know one of these houses won't be build directly above a potential hazard or even wetland that the studies missed. We don't want an approval upon a condition here, we want it done first before any approval.

2. Changes in Road Sizes.
The P&Z has requested of ARS changes in the size of some of the interior roads and driveways. Will these changes meet the wetland codes? These changes should be presented to this commission prior to approval. We don't want an approval upon a condition. We want it done first before any approval. BTW Sidewalks are still an issue which have not been resolved. Letters are still moving back and forth.

3. The Sewer line
Norwalk is under the assumption that all permits have been granted by Westport. As we all know this is not the case. The Norwalk Water Pollution Control Department has been notified of this inaccuracy. Norwalk has only approved a sewer line extension, not the specific one which ARS suggests. There are also myriad questions over who is supposed to maintain this private sewer line between the Norwalk border and the property in question. This hasn't even been brought up to Westport yet. I didn't know a cart could move a horse. We don't want an approval upon a condition here, we want it done first before any approval.

4. Studying
What more can I say, numerous people are asking for more studying. The DEP in their letter of Nov 4 says."Assessment of potential impact to these [neighbors] wells should be considered by the Westport Health Department, with the possible assistance of the CT Dept of Public Health. We don't want an approval upon a condition here, we want it done first before any approval.

They go on to say "Monitoring conducted detected concentrations of some compounds considered to be "leachate indicators." It may be advisable that the town and developer evaluate if any aspects of the CT Ground Water Standards are applicable to this property or down gradient properties." We are those down gradient properties. We don't want an approval upon a condition here, we want it done first before any approval.

5. Conditions
Maybe you are wondering why I keep saying "We don't want an approval upon a condition here, we want it done first." Because conditions after approval don't seem to hold weight. They are not open to the public to comment on or review. The example I can bring up front is that of the Directional Drilling. The Condition was to do test drilling. What occurred was a full scale drilling and installation of the sleeve to hold open the hole. This was not done once after it was shown to work, but twice to save ARS money. Letters flew back and forth with threats from the commission trying to reign in the monster you allowed. When finally sorted out the answer came back, we already did it, what do you want us to do. Do we want this to happen again, no.

What really happened out there. According to a letter from the DEP on Nov 4th they should have been notified. "During any activity, such as direct drilling, a discharge or any substance is directed to the surface water or wetland, a discharge authorization may be required. I should be contacted if this is likely to occur." He doesn't even know it was already done. And I have seen what they did out there, discharge made its way into the wetland. Do we want this to happen again, no.

Is this the first time this commission allowed things to get out of hand no. I know this will make some of you cringe, but 80 Bayberry Lane is too similar a situation not to bring up. There, we had someone trying to develop a wetland property and the commission tried, but did not stop them. The town, tried didn't stop them. The neighbors finally did when it all went to court. Why did it get so out of hand, because they were given an inch and they took a mile. And that is exactly what ARS did with the direct drilling under the guidance of the same attorney that represented the party at 80 Bayberry Lane. And what did that attorney say here. We already did it what do you want us to do.

We want all the conditions met up front. We don't want any closed door dealings that change anything that we can't object to, monitor and review. What occurred with the directional drilling was illegal. What happened at Bayberry Lane was illegal and it should not be up to neighbors to correct what this commission or town caused and can't fix.

Deeds Restrictions

The excessive home/property owner restriction or conditions that are being placed on the this development only prove that these houses should not be placed here in the first place. By saying, they can't use pesticides, fertilizer or herbicides. By saying they can't build decks, play sets, basketball courts and gardens. By saying they have to pay for the sewer line outside their community and have to maintain the retention pools. All prove that there is no reason to even try to put these houses there. There is no reason to go looking for ways to put houses on this land if they can't just exist normally.

Which brings me to my main point. Deed Restrictions or Code, Covenant Restrictions are unenforceable in this situation. And I will formally submit this into my intervention. Sean Timmins brought it up and I will explain. The legal term is Abandonment. And while deed restrictions might work on a single individual or home, they do not work on a group.

Jones Osborn II an attorney wrote:
Deed restrictions can become unenforceable through abandonment. This occurs when the neighborhood changes in such a way that there are numerous violations of the restrictions... For example, a restriction against wooden fences in a subdivision can be deemed abandoned after a large number of owners construct wooden fences in violation of the restriction.

There are numerous sites in CT case law which bear this out. Every lawyer I have spoken with said the same thing.

As I and many people have said before, the new owners will run amok. They will not obey these overly restrictive, but obviously needed, conditions and will harm the wetlands, the natural habitats and aquifer.

The town does not have the resources to police these people and the community group won't police themselves because they will do what they think is right for themselves not the community around them or the town.

85 foot Setback

I still maintain that all houses above the aquifer should have the 85-100 setback. Even the DEP says this site is within the aquifer buffer.

I received a letter to Diane Farrell discussing just this and can't believe what it says.

"[Town attorneys] advised that since the past Commission had never required a larger setback, we would be on "shaky legal ground" if we were to now impose one."

WHAT? Since when can't a commission impose the regulations that are on the books? What jaundiced view of the law could come up with this interpretation? Does that mean that no rule or law can never be used because it has never been before?

And too boot it's wrong. The commission has imposed a 100 foot setback at Coleytown rd and Heron Lake at Newtown Turnpike.

The other argument was that implementing this setback would constitute a taking. No it wouldn't. A taking can't come from something on the books and something the applicant already knew was a possibility. Also a taking as everything to do with profit and use of the property. They will still achieve both even with the 85ft setback on the Eastern section.

I ask you, the commission, to be free thinkers. To make your own decisions on what you think is right and what you believe the regulations say. Not what some attorney who doesn't want to litigate something says. Wouldn't it be more prudent to try to protect something and win, then not and never know out of fear. The regulations say you can do it, DO IT.

The Annual Report

Annual Report of Westport Boards and Commission 2001-2002.

Nearly one-half of the properties in Westport are under the jurisdiction of the Conservation Commission. In addition, nearly 95% of the town is already developed. Therefore, as predicted in our 2001 report, the trend to build on marginal land has increased in the past year and many of the applications reflected this.....

....Therefore, we expect to review applications that will be encroaching more and more into the buffer area surrounding the wetlands. To meet this challenge and to continue to protect our resources the Commission expects to review and propose revisions to both the inland wetland regulations and the Waterway Protection Line Ordinance in order to ensure proper protection is afforded to this most valuable resource.

Looks to me this commission realizes that changes are needed and that they are going to raise the bar. But when it comes to this most prized piece of property, the bar is actually being lowered. Below what they would have allowed in 1991. And that was made totally clear by Mr. Aber's presentation. If you are going to change the rules do it now. Start here, with this piece of property. How will you feel in a year when you create a 50 foot wetland setback and houses that you know should not be there are on the Partrick Wetlands and only setback 35'.

Your own annual report tells it like it is. I should not have to.

So let me sum it all up.

There is contamination on this site. Our wells have been impacted. 9 or the 10 tested so far have redlined on some contaminant. Mr. Timmins did a wonderful job putting this together and presenting it. Other substances are present that can only come from leachate. No one knows what dumped there. The towns own memos speak of it left and right. It needs to be studied and checked out by all governing bodies and before an approvals are given. Anything less would be a gross miscarriage of justice.

The uplands are the most import aspect to this site since they are the ones that will be destroyed. Even in 1991 they didn't allow as much impact to them, why should you. Tom Rachovansky pleaded in his letter to protect them and increase setbacks. So his words were not specific, but his tone was. Don't dance around this issue, don't use semantics when it is obvious to all what was meant.

I attended almost all of the work sessions, I saw how things went. I saw more 4-3 decisions than I cared to. I am not speaking to all of you here tonight. I am speaking to those who were in the middle Commissioner #4 the one who broke the ties. Commission #3 and #5 on either side who weren't quite sure. I know why you voted certain ways. You didn't have all the data, all the tools you needed. I know you didn't want to vote against wetlands and the environment and what was right. Well now you do have the tools you do have the data to vote confidently and strongly to protect the wetlands, uplands and open space.