Protect the Partrick Wetlands
and our Community

Sumation of Arguments, Partly Presented to the Conservation Commission

This applicant has not met their burden of proof, nor did they do it in last application that was approved. And for one simple reason. The applicant has not proved they will not harm the wetlands, the animal habitat or the aquifer. They had this burden since the last application and they have it now and they have not met that burden. Ira Bloom the town attorney in his letter dated December 2, 2002 states quite clearly "the applicant has the affirmative burden to show that the proposed activity does not impact the wetlands or watercourses." I have had 5 attorneys look at the regulations and read this letter and each one said that same thing. The applicant must show they will not do any harm.

John Kennedy, an attorney, living at 4 Partrick Road wanted me to add this:

The legal burden is entirely with the applicant to demonstrate with substantial evidence that proposed regulated activity will not impact the wetlands. The question then becomes: if there is evidence before the Commission (whether introduced by the Commission, its experts, interveners, ordinary citizens, etc.) indicating that the proposed regulated activity will adversely impact the wetlands, then the applicant has the burden of demonstrating with substantial evidence that such adverse impact will not occur.
This application is DOA and the citizens of Westport don't need this commission to do any CPR.

I have shown there will be harm, but I didn't have to. You have shown there will harm through your hired consultants, but you didn't have to, many citizens of Westport have shown there will be harm, but they didn't have to. ARS now must prove they will not cause harm, and they have not. If you have any doubts about what will happen to this land, then you should deny this application. And if you don't have any doubts then I guess you just have not been listening.

Let's talk about Nizzardo. When Mr. Weisman read his quotes from the analysis of the decision, I knew right away that it did not apply to this proceeding. It was a good play and based on a timely decision, but it just doesn't apply here. There were two issues, 1. That arguments be environmental and within your jurisdiction. They are, including the water issue, which I will get to later. 2. That the arguments were specific and factual. They are and well documented as well. Ira Bloom agrees, in his letter he said, " In this application, the intervening parties have raised specific environmental concerns...[and] they must be addressed by the Commission."

One area Nizzardo does not cover, that of all the citizens who have sent you letters and spoke before you at these hearings. They are not interveners and they have given you more than enough doubts about this application for you do deny it.

So let's talk about the last part of Mr. Blooms letter. That of the aquifer regulations. I agree the aquifer regulations don't apply here, in that the level "A" and "B" maps don't quite make it this far. Why? Because Bridgeport Hydraulic drew the lines. Their goal was to protect their well fields, not the personal wells of the citizens of Westport. Their own self interest superceded the obvious needs of everyone else. And the town was quick to accept these lines as it kept a piece of land known to leach off the map.

But the aquifer is still within your jurisdiction since the Wetland regulations 7.6 give them back to you. This then creates a new situation for you the conservation commission. You have been charged with aquifer protection by the town, you know what the aquifer regulations want and say, so using 7.6 you can still accomplish your charge by protecting the aquifer instituting the 85 setbacks.

The aquifer, maybe not the aquifer regulations, are completely within your jurisdiction and thus you have the charge of protecting it from pollutants, contaminations and the like. Thus local wells which get there water from the aquifer are within your jurisdiction and if you have any doubts about this application harming the aquifer you must reject it.

R.G. Slayback essentially is telling you the problems on the land are the town's. I won't disagree it is the town's problem, but it is also ARS's for the simple reason that much of what was dumped was also dumped on the ARS property. There are multiple memos that bear this out. In addition the old mine was dumped on as well. No one knows where or how much was dumped on that land and until it can be clearly studied and isolated then we still have problem.

Doug Zimmerman of the CT DEP has told me in more than one conversation that leachate has shown up in the wells on the ARS property and he has concern. The question is, is the leachate coming from the town dump, the garbage dumped on the ARS land or from pollutants dumped in the old mine holes. I can't answer that question and Steve Edwards could not answer that question. I don't think anyone in this room can answer that question. So until this question is answered you should not approve this application.

Allow me to continue with Mr. Zimmerman. He in his capacity with CT DEP has agreed to over see the Westport Town's testing of wells near this property. Judy Nelson is working out a study pattern to do this testing. We await her response. But I will add for the record that the town is in a bit of pickle here. They very well might be the polluters of this aquifer and their doing the tests to prove this might be in conflict.

Remediation is not an option. Placing a band aid on the wound is absurd. Public water already exists at Wilton Road and Partrick thus making moot Mr. Weisman's suggestion that will bring public water to remediate. There are also areas where contamination could occur where water could not get to. This whole thing is a disaster waiting to happen.

Anyway you slice it, since you are responsible for the wetlands and since this commission has jurisdiction over the aquifer, granted by the town and in your own wetland regulations it would be prudent not to approve this application until all doubts were lifted. Not just because of the water problem, but soil problems which might result from disturbance.

I have to say your staff is amazing. And again I'd like to thank Alicia and Katie and the rest of their staff for all of their hard work. So let me address the latest staff report. And their argument for putting the silt fences to protect as much of the land as possible from disturbance is right. You know that when everyone's backs are turned the bulldozer will do what it wishes. And we concur houses 1,2 19 should be denied again.

But again I would argue that no approval should be considered upon conditions. We want the conditions met up front. You should not approve this and then have them do spring time monitoring. Let them monitor and then come back for full approval. That way the public can review it. As I said last time, conditions upon approval are suspect. That has been proven with the direct drilling fiasco.

The staff asked for a land disturbance report. Land Tech responded. But it does not have the full information needed. What also needs to be provided is a break down of upland disturbed on each side of the brook. The issue raised by more than myself is that upland habitat is needed and that most of it will be destroyed on the South East side of the brook. And species which cannot migrate do to natural and man made obstacles will be jeopardy.

Now for the big one. Don't let the contamination issue slide to P&Z which was suggested in the staff report.. Just because ARS has a time constraint to meet P&Z does not mean you should rush it to them. You make the decision and based on the facts at hand, fully well knowing the burden is on the applicant. We don't want to see any conditions here, we want it taken care of up front and in totality. This issue is way too big to put off to another commission. As a matter of fact, I'd like P&Z notified of this possibility and have them have open hearings about their accepting this hot potato or not, before you toss it to them. This stays here, it is clearly your jurisdiction and it needs to be decided here, no matter how long it takes.

I'd like to discuss again the myriad restrictions that you have requested to be placed on the potential owners of these houses. I really need this commission to justify how instituting Draconian measures to protect the wetlands is reasonable when not allowing houses will create a better result. If you truly feel the wetlands will be impacted if home owners are allowed to go about their lives as every other home owner does, then doesn't that send up a red flag and tell you maybe you should not be sticking houses here.

And then the natural extension to this thread is who will accept these restriction and even if they do on paper will they follow them. And who will police them? The whole situation is unworkable, the restrictions will be ignored, legally, and the wetlands will be impacted. I can't stress enough that this single reason is enough for you to deny this application.

So let's talk about this application. This is not a modification of the old application, this is a new application. Dr. Starr said so within minutes of the opening of the hearings. Are we really here only to discuss houses 1, 2 & 19. Roads have changed, retention areas have changed, house locations have changed. Let's not allow this issue to slip through the cracks. We have a whole new application here.

What does this mean. First of you can deny the whole thing. Second you can approve some and deny some. You can institute the 85 setback on all houses above the aquifer. It is within your jurisdiction, its in your regulations, and it is totally reasonable. And there is enough in the record to have your justify it in court.

But just in case some how this is manipulated into only being a modification then let me explain how houses 23 & 24 are totally in play and can be denied outright.

1. House 24 has moved, it is not the same house that was approved before. It's new.
2. They are asking for a change in driveway material
3. Both 23 & 24 will now share a driveway.

Now let me tell you why they should be denied

1. Both 23 & 24 are above the aquifer and require the 85 setback.
2. 24 is not more than 100 from a water course while also being above an aquifer
3. Both are on a piece of upland critical to animal habitat. It is the only upland east of wetlands not on the proposed property. There is a very limited amount of upland on the South East side of Poplar Brook and is a precious piece.
4. The upland is so thin that instituting the 45' setback you have given to other houses would force them both into the setbacks. There is no reason to think that these two houses wouldn't cause harm. And 24 is closer to wetlands and further away from the road than two other houses that were given the 45' setback. Personally since you went 45' on some, you should have gone 45' on all of them. The inconsistency is a problem which can be rectified now. Apply it all and 85' on those above the aquifer.
5. Diane Lauracella an environmental consultant and head of the local Sierra club stated for the record that this peninsula of upland was needed for animal habitat. That is the specific information, that the town attorney wanted you to have and what Rachovansky was getting at. Somehow you chose to ignore him even though it was clear as day when he said more upland was needed and greater setbacks should be instituted.

Deny these two houses or place the setback requirements on them that your regulations and decisions allow.

Then of course, there is the whole mind boggling idea that this commission approved 60,000 sq feet of foot print impact on the land, 11 years after the prior commission only allowed 20,000. Don't we know more now, don't we care more now? How can it be that in 1991 that commission only approved 1 house with 800 sq feet of impact on the upland where houses 23 & 24 are proposed and you approved 2 houses with over 4200. 5 times the impact.

I have been getting up in front of you and speaking for almost a year now. I know some of you were in my place up here from time to time trying to protect our resources yourself. Now you are on the commission and have the power to do just that.

It all comes down to burden and doubt. They have the burden and you have the doubt. If they don't prove, beyond a doubt, that the wetlands won't be harmed, the animals won't be harmed, that aquifer won't be hurt, then you deny the application.

I ask you to look into your hearts to find the answer, the right answer, the one 10 years from now you will still be proud of.

Matthew Mandell
38 Partrick Rd

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