Why did the Alliance file an intervention application with the Conservation Commission? What is it and what does it accomplish?
According
to the CT Office of Legislative Research, CGS § 22a-19 established a
general right of intervention in administrative proceedings involving
the public trust and other natural resources. “The
stated purpose of the bill was to provide a right of action for
declaratory and equitable relief for the protection of the air, water,
and other natural resources of Connecticut.” The full history of the
bill is here: https://www.cga.ct.gov/PS97/rpt/olr/htm/97-R-1481.htm
Common
law recognizes the right of an abutting property owner to sue
a neighbor for polluting, but parties without this standing had no way
in intervene against someone who unreasonably polluted the environment.
Intervention, then, is really about creating a legal right to be part of
the process.
In
this case (#490 – 555 Christian Road/764 Southford Road), the
Conservation Commission did not schedule a public hearing when it
accepted the applicant’s site plan. All the minutes say is “The members
of the Commission agreed that a Public Hearing was not required.”
The minutes of that meeting are here: https://www.middlebury-ct.org/sites/g/files/vyhlif6871/f/minutes/11292022_minutes_cc.pdf
The
filing of wetlands during a construction project is the very definition
of “adverse effect” on wetlands, and the applicant offered no feasible
alternative to this filling (like a smaller building footprint). While
the plan proposes to create other wetlands elsewhere on the property,
the one is not a direct replacement for the other, and it does not
relieve the burden of considering feasible alternatives to the
destruction of the original wetlands.
Filing
an intervention application with the Conservation Commission allows the
Alliance to present expert testimony on the site plan’s compliance with
the State's storm water management guidelines (spoiler alert: it
doesn’t comply). The proposed use is classified a High Pollutant Load
Site by the CT DEP 2004 Storm Water Quality Manual “2004 Manual” (Table
7-5, page 7-8), and so the plans have to demonstrate how this higher
pollutant load will be handled (spoiler alrert: they don’t).
The
irony in this story is that the Conservation Commission has the right
to ask for this expert analysis as part of its consideration of the
proposal, and the applicant would have had to pay for it. Instead,
Middlebury residents are paying for this expert analysis to make sure
that their town isn’t unreasonably polluted. Go figure.
