On Tuesday, Judge Marshall Berger Jr dismissed the appeal by Post Road Iron Works, Inc of the Inland Wetlands and Watercourses Agency’s denial.
Post Road Iron Works, Inc., which continues to fabricate steel on West Putnam Avenue after nearly a century, made an application to the agency in January 2016.
After 5 months of review and testimony, the agency issued a letter of denial in July 2016, which was followed by a filing of an appeal with the state supreme court.
The plaintiffs sought a permit for a 355-unit apartment building on five acres at 345 West Putnam Ave.
The judge’s decision, which was the subject of a release from IWWA director Pat Sesto on Friday, factored in the extensive industrial history on the site and remedial action to address contaminated soil.
“The agency fully supports cleanup of the contaminated soil and even redevelopment, but the plans need to be vetted thoroughly and accomplished without undue harm to the nearby wetlands,” said IWWA chair Brian Harris in the statement. “The applicant didn’t provide the documentation needed to prove this would happen.”
Judge Berger’s decision specifically affirmed the agency’s finding that the application was incomplete for several reasons and therefore, the applicant did not meet their burden of providing their position.
According to the IWWA regulations, any application deemed to be incomplete shall be denied.
Similarly, if the agency can’t conclude there are less harmful alternatives to the wetlands, the application must be denied.
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Nick Cataldo of the Greenwich Neighborhood Preservation Association (GNPA) filed as an “intervenor” early on in the application process, giving the association the right to fully participate in the proceedings. GNPA’s interests focused on the system of vernal pools in proximity to the project and whose importance was first documents with the 2012 “Tollgate” application.
To represent their concerns, GNPA hired Dr. Michael Klemens, a renowned herpetologist who investigated the vernal pools back in 2012 and 2016.
Several functioning vernal pools were identified during the Tollgate application and it was noted the unusual nature of this given the density of residential development surrounding them.
Previous and current reports by Dr. Klemens highlighted the importance of retaining and enhancing what remains of the surrounding woods.
Wood frogs who live part of their lives in those woods also need the vernal pools to reproduce. The presence of the juvenile frogs in the vernal pools is critical to keep the nutrient cycles of the pools functioning properly. Without the breeding population of wood frogs, the vernal pools will deteriorate.
After reading the decision, Mr. Cataldo expressed satisfaction noting the contributions of the GNPA made a difference.
The testimony of Dr. Klemens was cited multiple times in the decision,” Cataldo said. “His observations regarding the importance of the woodlands on the Post Road Iron Works property to the health of nearby vernal pools were central to the agency’s decision.”
In 2017, GNPA moved forward and implemented a vernal pool enhancement project on Hemlock Drive, directed by Dr. Klemens. It is the neighbors’ intent to rehabilitate the pool and compensate for past impacts.
IWWA Director Pat Sesto said this affirmation has ramifications statewide.
“Every time a case comes before the court, agencies across the state learn more about how to interpret and implement the state statutes.”
In this particular case, the judge confirmed the agency’s right to pursue ancillary activities necessarily associated with the project, even if these activities are off-site.
The attorney for Post Road Iron Works rejected the agency’s requests for details regarding a proposed sewer repair project required to facilitate the increase in volume generated by the proposed development, stating the sewer project was not part of the application.
Back in May 2016, the agency relayed concerns of the Town’s Sewer department, who described the applicant’s calculations as “impossible,” and would overload the sewer line. Specifically, the applicant’s calculation of 46,000 gallons generated a day was based on just one person per apartment.
The repair work would have been directly associated with Horseneck Brook and some distance from the Post Road Iron Works property.
Judge Berger agreed with the agency that they correctly considered this integral to this application and within their jurisdiction.
“Refining the jurisdictional boundaries of the state statutes is an ongoing endeavor,” Sesto said. “We couldn’t conceive of how the sewer repair wouldn’t be considered part of the project and under the agency’s jurisdiction, but the law doesn’t always follow our interpretations. This time it did.”
Sesto described the proposal as a complex project, with consequences well beyond the property boundaries
“It is the charge of the agency to safeguard these resources to the benefit of the affected property owners and community as a whole,” Sesto said. “The agency did an excellent job protecting those interests.”
The denial of the redevelopment by the Planning & Zoning Commission was also appealed.
Judge Berger will likewise review this case.