Minutes of the June 22, 2005 meeting of the Council on Environmental Quality, held in the Holcombe Conference Room, 5th Floor, 79 Elm Street, Hartford.

PRESENT:  Thomas Harrison (Chairman), Howard Beach, John Mandyck, Susan Mendenhall, Richard Sherman, Norman VanCor, Wesley Winterbottom, Karl Wagener (Executive Director)

Chairman Harrison called the meeting to order at 9:05 AM. 

To accommodate the schedules of some guests, Chairman Harrison suggested that the Council re-order the agenda to take up citizen complaints first.  Consensus.

Citizen Complaints

Abuse of open space --  Chairman Harrison introduced Tina Delaney, member of the Board of Directors of the Farmington Land Trust, and attorney Michael Zizka.  Wagener introduced the complaint as one of a number he had received about similar problems, though it was unusual in that it involved privately-owned open space.  Ms. Delaney explained the photographs that had been distributed to Council members.  The photographs showed trees that had been cut down on land trust property, and also resultant erosion and runoff-induced damage to land trust property.  In response to questions, she said the town’s land use commission did not take action.

Mr. Zizka said the laws that the land trust could use are old or absent.  The statute regarding illegal cutting of trees on another’s property allow for treble damages, usually based on the lumber value.  The value is so low that the people do not worry about it.  That law dates from the days when the value of the lumber was probably the main issue, but today the motive for cutting is to improve the view for million-dollar homes.  The law has not changed with the times.  If the law allowed for recovery of replacement value of the trees, the amounts would be more in line with the damage caused.

A second area of the law includes water laws and drainage laws.  The courts have not been sympathetic to landowners who have been harmed by new runoff from adjacent development.

There is the potential for criminal prosecution, but the prosecutors in this area of Connecticut seem to want nothing to do with this type of crime or criminal zoning matters.  The police investigation documented the crime, but the state’s attorney office refused to issue a warrant.  Wagener interjected that Chief State’s Attorney Christopher Morano, in a reply to State Representative Giannaros, supported his staff’s decision that the land trust would have to pursue it as a civil matter.  Chairman Harrison, Mr. Zizka, and others agreed that the principle of criminal prosecutorial discretion probably could not be altered.  Mr. Zizka said the need is for the remedy to be restoration of the damaged area, especially for land trusts which have a legal obligation to maintain and defend the open spaces under their care.  Members agreed that this warrants further review.  Mr. Zizka agreed to draft some language that the Council could look at. 

There was considerable discussion, including a discussion of how town regulations and enforcement varies greatly.  Roger Reynolds, an attorney with the Connecticut Fund for the Environment, speaking from the audience, said that the Connecticut Unfair Trade Practices Act might provide an avenue for a remedy.  Mr. Zizka responded that he had raised that point in his letter to the developer.  Ms. Delaney reiterated that land trusts do not really have the money for the consultants and attorneys needed to defend itself.

Margaret Miner of the Rivers Alliance of Connecticut mentioned a similar case several years ago in Bridgewater where a warrant was issued, and that helped spur a favorable resolution.

Mandyck noted that this was the second meeting in a row where a problem in Farmington was the subject of a complaint, and suggested that the Council look into this, and maybe hold one of its public meetings in Farmington.  Sherman suggested more research on this.

Updates on Other Complaints – Wagener reported that, though it was not a complaint, the legislature had approved the State Conservation and Development Policies Plan, and that one implication was that now the Office of Policy and Management staff would be able to turn its attention to amending the Connecticut Environmental Policy Act recommendations, as the Council had suggested.

Wagener said that a complaint received months ago – namely, that the DEP was paying insufficient attention to reality and was relying too much on maps when drawing the boundaries of aquifer recharge areas – had been considered by the DEP and was addressed in the DEP hearing officer’s report of May 2005.  The Hearing Officer’s decision, as summarized by Wagener, was that the proposed system was good enough, and that a far more expensive system, though potentially more precise, would not result in important changes.

Wagener reported that citizens in Weston had informed him that the original DPH enforcement matter pertaining to the municipal land development had not yet been resolved, but more development was occurring.  The citizens were informing the DPH as well.

Wagener described a complaint from a citizen who was concerned about two alleged deficiencies in state law pertaining to pesticides.  The citizen believed the increase in non-Hodgkin’s Lymphoma cases, as reported by the Council, was tied to these.  First, he said that notices on golf course were insufficient to warn golfers of the potential danger of the pesticides that had been applied, and that he, as a golfer, could not recall seeing any signs on the tenth hole as required by regulation.  Second, he said that municipalities sprayed pesticides where people walk, such as sidewalks, with no notification to the public.  Some of the labels require an area to be closed for an hour, but that does not happen.  Homeowners and others must post their properties, but towns and cities have an exemption for spraying in rights of way.  Furthermore, municipal employees need not be certified to spray general-use pesticides, unlike commercial sprayers.  Members were unanimous in saying that violations should be investigated and enforced, but that the Council did not at this time have the resources to pursue changes that would require a change in statute or regulation.  Wagener was instructed to report back to the citizen that the Council was not unconcerned, but did not have the information or resources to pursue changes to the law.  Sherman added that the Department of Public Health should perhaps take up more of these public health issues.

Another complaint, Wagener said, was about the many tons of lead that were sitting in the ground in inland shooting ranges.  He had inquired to find out if the DEP had ever looked into this issue, as other states and the US Environmental Protection Agency had, but did not yet have any information.

A citizen had made a specific, written request to appear on a Council agenda to explain why the DEP should adopt regulations for its Structures and Dredging program.  Wagener said the citizen cited two types of standards that are missing from the DEP’s program, including a ban on arsenic-treated wood, and standards for storm resistance.  Wagener recalled that the Council had encouraged the development of such regulations in the past, and that they had been started, but he did not know what became of them.  Members said that the citizen would be welcome to have 10 to 15 minutes at one of the upcoming meetings.

Chairman Harrison returned to the regular order of the agenda, and asked for a motion to approve the April 27, 2005 minutes.  Motion by Mendenhall, second by Winterbottom.  Unanimous.

As part of his report, Chairman Harrison said he was happy to have Lori Brown, Executive Director of the League of Conservation Voters of Connecticut, present to deliver a summary of environmental legislation of the recently-concluded session.  Ms. Brown began by saying that the 2005 session was, in her opinion, even better than 2004.  She reviewed a list of the important bills that passed and those that did not.  In the former category, she highlighted An Act Concerning Land Preservation, Affordable Housing and Historic Preservation, an Act Concerning Plans of Conservation and Development, and two vehicle emission bills.  In the later category she highlighted the bill to expand the bottle law to include water bottles, the failure of which she said was due in some part to well-funded lobbying by opponents.  Members had some questions, and thanked Ms. Brown for her excellent report.

Wagener said that no state agency actions were on the agenda.

Discussion of state land issues

Wagener said that he had learned of some encroachments onto state land by neighboring land owners.  Beach said that he had first-hand knowledge of one such case in his role as the zoning enforcement officer for Simsbury.  He visited a property where a two-story building had been built partially on state land and also in violation of town zoning regulations; the DEP had asked the town to take enforcement action, which it was doing.  He passed around photographs of the building, and also of large amounts of trash on another state property in his town.  He agreed with Mr. Zizka’s previous statements that the seriousness of the crimes warrants more penalties, such as the cost of restoration. VanCor mentioned that when he was employed by the DEP at Sessions Woods in Burlington, he spent a lot of his time in the previous summer documenting encroachments, which he said appeared to all go into a stack of files that stayed in Sessions Woods because of a perception that they would not be resolved if sent to Hartford.  Members discussed the problem, and agreed that it should be investigated further.  Harrison wondered if the problem could be elevated in the eyes of judges if they were approached as a group.  Sherman and others suggested that it should be pursued as the remaining piece of the effort to conserve open space; acquisition was not enough.  The Council asked Wagener to present a report at the July meeting on the extent of the encroachment problem statewide.

Other Business

Sherman said that he would like a future agenda item to be a discussion of the indicators selected for the annual report.  Members agreed.

Wagener said that he had reserved the Torrington City Hall for a public forum in September, specifically September 21, a change from the regular meeting date.

Harrison adjourned the meeting at 11:30 AM.