Protect the Partrick Wetlands
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Town Attorney Suggests Independent Review for Poplar Plains

By Kirk Lang

Printed in the Westport News

Town Attorney Ira Bloom recommended to the Planning and Zoning Commission last Thursday it should hire an expert independent consultant to review or further research environmental concerns regarding the former F.D. Rich property, slated for development by ARS Partners.

The previous week, the zoning board made a vote not to do so, feeling it has enough information to go on when the time comes to make a decision on the project known as The Reserve at Poplar Plains.

Bloom said having another consultant "would enhance the quality of your decision," adding, "I recommend that you reconsider." Part of the reason for his suggestion is that there are two intervention petitions that have been filed in opposition to the project. Under state statutes, intervention petitions allow citizens not directly abutting a subject property to become part of the process and raise environmental issues, according to Bloom.

The P&Z will have to determine whether the claims of the interveners that the project will cause or is reasonably likely to cause pollution, impairment or destruction of the public trust in the air, water or other natural resources of the state is accurate. Secondary claims that the conduct of the applicants will cause unreasonable pollution also must be tested. If they are found accurate, then the commission must address whether there is a feasible and prudent alternative.

Much has been made of arsenic that has been found on the site in the past and neighbors in proximity to the project are worried that when construction begins, contaminants in the ground may pose a threat to their well water. While Russell Slayback, a geologist who testified on ARS' behalf weeks ago, said that drillings that located iron, phosphates, nitrates, arsenic and benzene were well below allowable levels, some believe more research needs to be done.

There are many against the project who wonder if the drillings were deep enough or if more soil samples, in more locations, are needed. Slayback told the P&Z Thursday the arsenic was discovered in "two shallow surface samples" and samples were only taken from the area next to the former town landfill. He said he believes the property is safe for residents, neighbors and workers but noted, "I have never testified this is a pristine site."

Bloom's advice to the P&Z was to allow an independent expert to look at the site. However, because of time limitations (the public hearing has to be closed by July 10) the only way that could be done was if ARS attorney Larry Weisman was willing to withdraw the application and re-submit it. Weisman was unwilling to do this.

"This comes too late in the proceedings to be fair. I think if you were going to do this we should have done it when you started," said Weisman, adding, "I will not subject my clients to this."

According to Bloom, if Weisman had withdrawn the application and re-submitted it, ARS would not have been required to come before all of the other town boards and commissions for approvals. The previous approvals, such as those from Conservation Commission and the Flood and Erosion Control Board, would have remained. In fact, if Weisman had withdrawn the P&Z application and resubmitted it, he would not even have had to repeat his presentation. Bloom said all of the audio tapes and paperwork presently a part of the current proceeding could have been submitted as part of the record.

Before Weisman stepped up to the microphone and stated there was no way he would withdraw and resubmit the application to allow findings by an independent expert to be submitted into the record, the P&Z had some questions about hiring the impartial consultant.

P&Z Commissioner Edgar Van Gelder wondered if in doing so, it would be setting a precedent.

"To some degree, yes, but only for complicated significant projects," said Bloom. For other projects that have come before the P&Z, the town has hired experts or used its own staff to conduct Coastal Arear Management reviews or traffic studies. However, Bloom said the staff does not have the expertise to conduct thorough environmental reviews.

"There's nobody on the P&Z staff that can do this in-house," said Bloom.

P&Z member Elizabeth Kuechenmeister brought up the fact if the town hired an independent environmental expert, ARS would then have the right to counter that expert with its own expert.

Later on in the meeting, Weisman said, "By getting more information, I think you're only going to confuse the situation further."

P&Z Commissioner Arlene Gottlieb seemed to be the most obvious supporter of further review of the former F.D. Rich property.

"This isn't a traffic a study," she said. "It's contaminated soil and how it affects a community." She also questioned if borings taken on the site were deep enough. After having read information entered in the record over various weeks, including intervention petitions submitted by ARS neighbors' attorneys, she said, "I know what I'm reading and I know the questions that have not been answered."

Ed Lerner, representing intervenor Arthur Cohen, said, "I think one thing ARS is scared of is adequate testing. All of Mr. Slayback's conclusions are based on inadequate testing."

Bloom said if an expert was hired immediately, hypothetically speaking, and found some problems on the site, the applicant would not have a chance to comment.

"If he says it's fine, the intervenor would have no chance to comment," said Bloom. "Unless there's a withdrawal I don't know how you're going to do it, but if you don't have it, you're going to have to review what you have." The public hearing has to be closed by next Thursday, at which point the P&Z has 65 days to reach a decision on the application.