Protect the Partrick Wetlands
and our Community

ARS Appeals Housing Plan Decision

By Kirk Lang

It came as no surprise to the Planning and Zoning Department that Larry Weisman, attorney for ARS Partners, filed an appeal of the P&Z Commission's recent denial of his clients' application to site 22 single-family houses on the former F.D. Rich property, much of which is wetlands, with the Town Clerk's Office Wednesday.

"I understand why they appealed, to protect their interests," said Katherine Barnard, P&Z director.

Among other issues, Weisman, in his appeal, claims the commission was "unduly and improperly influenced" by a letter from First Selectwoman Diane Goss Farrell toward the end of the public hearing process, seeking to overturn its decision not to retain an independent consultant.

Farrell said Thursday, "That letter was simply an opportunity for me to provide comment as the process was still in the public comment phase."

Prior to receiving Farrell's letter in July, the commission had taken a vote not to retain an independent consultant to look into environmental issues associated with the 56-acre site, which was a former gravel pit and was used by some as a dumping ground. However, the commission's denial without prejudice last week called for further environmental study, feeling information submitted by the applicant was not sufficient.

Weisman's appeal claims Farrell urged the commission to deny ARS Partners' applications for "purely political reasons and without regard to the applicable law or the evidence presented at the public hearing."

As to the claim of influencing the commission's decision, Barnard told the Westport News the zoning board received additional testimony information, other than Farrell's letter, between its decision during the public hearing process not to retain an independent consultant and the end of the public hearing.

Early Warnings

In early July, Weisman warned if the P&Z did not approve ARS Partners' application, Farrell's letter would be an issue raised in an appeal.

"She has no right, by suggestion, to tell you how you ought to dispose of this application," said Weisman at the time.

Farrell, however, only supported further environmental testing to "enhance the decision-making process and make a stronger decision," according to her letter.

At the time she wrote the letter, the public hearing was soon to close under the law, thus precluding obtaining another report. She said one option for the P&Z was to deny the application without prejudice and encourage the applicant to reapply, so the commission would have more time to obtain an independent report. Before the P&Z had voted against hiring an independent consultant, a proposal was made in late June to the applicant to hire one, which would have required withdrawing and resubmitting the application. Weisman declined and refused that option.

Weisman also claims the zoning board's denial is illegal in that it is contrary to the competent evidence introduced at the public hearing and unsupported by competent evidence in the record.

The P&Z sees things a little differently, as many of its reasons for denial cite "inadequate information."

Also, the Planning and Zoning Commission has concerns warranting further tests related to health and safety risks to site construction workers, and eventual residents of the OSRD, related to exposure to soil contamination from arsenic, benzene, lead and mercury and other materials that may become disturbed during site development of the OSRD [Open Space Residential Zone] property," the denial stated. "The commission also has concerns related to site disturbance that may result in contaminants dispersing to groundwater through the underlying bedrock. Areas to be disturbed need to be tested."

Inadequate Information

Although Weisman disagrees, the P&Z said that the applicant provided inadequate information related to testing of soils and water to determine the presence of contamination and that testing was not done in all areas of disturbance.

"Limited testing," the P&Z said, "was conducted in 1977, 1985, 1986, 1997 and 1999. Limited arsenic testing was conducted during removal of arsenic contaminated soil in the area of the tire pile in 2000, but no testing has been done since, and no reason was provided for the lack of testing to date. The Planning and Zoning Commission needs updated studies conducted in 2003."

The appeal of The Reserve at Poplar Plains denial also states that the decision is improper in that "it seeks to hold the plaintiff to a burden of proof and to impose upon the plaintiff testing obligations and environmental standards which exceed those required by applicable law and are nowhere specified in or required by the applicable regulations."

It goes on to say that the P&Z "exceeded its authority by revisiting and taking into account environmental issues which had previously been considered and decided by the Conservation Commission and others and which are beyond purview, authority or competence of the Planning and Zoning Commission."

Weisman, in his final reason for a judgment sustaining the appeal, said that if the commission felt that it required the services of an independent expert, it failed to take timely action to secure such services "and is now estopped from denying the subject application for that reason."

When the commission came up with its denial last week, a couple members were concerned that if the denial were appealed and if it were successful in court, ARS Partners would not be beheld to a number of conditions it had agreed to.

The agreed upon conditions hinged on a zoning approval.

Commissioner Michael Stashower had suggested including the conditions the applicant agreed to, even though it was a denial. However, since the commission was drawing up a denial without prejudice, P&Z Chairman Eleanor Lowenstein advised against such a move.

One neighbor of the former F.D. Rich property, at the time, said it drove her crazy how the commission was trying to "second-guess the courts."