This is a printer-friendly version of an article from Zip06.com.
03/25/2016 03:07 PMThe town is reviewing the conduct of its inland wetlands enforcement officer and commission chair following allegations that their involvement with a Costco peer review was inappropriate.
Costco supporter and Branford Seven blog owner Steve Mazzacane found, through a Freedom of Information request, a trail of emails that he concluded showed "corruption, collusion, and lies" in the Inland Wetlands Agency and office (read that story here). As a result, Costco has issued a statement saying the company is "disappointed" with the inland wetlands officials' actions and that the report raises "...questions about the fairness of the third party review." An attorney for an intervenor group named in the report calls the blog allegations "absolutely ridiculous."
The town review, underway now, is expected to reveal if the actions were an illegal move against the Costco proposal or simply prudent oversight of a review process.
The main allegation of impropriety involves email communications between Branford Inland Wetlands Agency (IWA) Commission Chair Daniel Shapiro, Inland Wetlands Enforcement Officer Diana Ross, and Milone & MacBroom representatives. The Branford Seven found emails from Shapiro and Ross requesting changes to the peer review that appear to have added to the cost and delayed the review past its initial deadline (Costco is responsible for paying for the review). The blog site suggests the changes were made to favor Costco proposal applicant intervenor Branford Citizens for Responsible Development (BCRD) and found that, after Ross' office loaded the final review to the town's website for public consumption, Ross emailed BCRD leader Penny Bellamy with notification that the review was available.
A question that has yet to be answered by the town is whether it is an acceptable or common practice for a commissioner and staff to work with a peer review firm to finalize report language for documents entered into the public record, which could then be reviewed for defensibility, should an appeal arise regarding a commission's vote for or against an application.
The peer review was submitted into the public hearing record on March 10. At the hearing on March 10, representatives of Milone & MacBroom used the review to show that, while Costco has given the IWA enough detail to make a decision on the application, and while Costco has adequately addressed the development requirements of the Planned Development District (PDD) approved by Planning and Zoning in July 2015; other alternatives could have been submitted by Costco and were not. Those alternatives suggested by the peer review include downsizing the proposed 160,000 square-foot Costco wholesale building and/or the seven additional buildings to be incorporated into the PDD, eliminating Costco's 16-pump gas station; and reducing impermeable coverage (parking) at the site; any or all of which could mitigate surrounding environmental impacts.
The Costco engineering and soil science reports were originally accepted by the IWA in Oct. 2015 among one of three applications involved in the Costco development planned for 44 acres off I-95 at Exit 56. The original public hearing, scheduled for Nov. 12, was rescinded due a delay on the part of the IWA to hire an outside engineering firm to conduct a peer review. The clock was reset on the applications by withdrawing them in November, then resubmitting them; and a new public hearing was set and opened on Jan. 14, 2016. While the hearing was underway, Costco revised its application with modifications in an effort to incorporate stipulations produced during discussions with another application intervenor, Branford Land Trust. The revisions were submitted by Costco to the Inlands Wetlands office on Feb. 24, 2016 and became part of the peer review process.
Because the Costco application is in the midst of the public hearing process, neither Shapiro nor any commission member can publicly discuss any matters pertaining to the application, Ross told Zip06 on March 24. As of mid-afternoon on March 24, due to not having information disseminated to her office with regard to the blog site allegations or the town review, Ross told Zip06 she could not answer questions on the matter.
Branford First Selectman James B. Cosgrove confirmed for Zip06 that, because allegations were raised concerning a town employee and a town commissioner, the town is obligated to review the matter. Cosgrove also supplied Zip06 with a copy of his statement.
The statement from Cosgrove, in full, reads, "We are currently engaged in a careful review of the issues and information raised in the recent press report regarding the conduct of certain individuals involved in the Costco wetlands application process. I want to assure the citizens of Branford that we intend to take every appropriate and necessary step in response to the facts to assure an open and fair process for all applicants, intervenors, and the taxpayers of our Town."
Zip06 also reached out to Costco Wholesale Co. application representative Joseph M. Montesano, who confirmed a statement from Costco on the matter was released March 24. Montasano could not comment further on the issue.
The Costco statement reads, in full, "The Town of Branford recently released documents in response to a Freedom of Information Act request by The Branford Seven regarding the activities of the Town's Inland Wetlands & Natural Resources Department in connection with Costco's pending inland wetlands application. Costco Wholesale is disappointed by the documents that have been made public, which raise questions about the fairness of the third party review initiated by the Inland Wetlands Commission to review the Costco application. Throughout a very long application process, Costco and its professional team have conducted themselves in a cooperative manner aimed to facilitate a thorough review of the pending application. Costco believes that its application complies with all Town of Branford Regulations, and that it has been candid and forthcoming with information requested of it by the Commission, its consultant, other consultants retained by environmental intervenors, as well as the general public. Costco is confident that the Commission has the information it needs to make a full and informed decision. Costco's goal from the beginning has been to design the best possible Costco store for the Town of Branford. Despite recent events, Costco remains optimistic that this application process will conclude favorably and this Costco project will move forward."
Zip06 also contacted BCRD, which is a grass roots opposition group that is openly opposing the Costco application and has intervenor status.
"It's not even an issue," said BCRD's attorney, Keith Ainsworth, of the blog report.
"It's absolutely ridiculous. What this (blog report) has found out, which anyone who works in land use knows, is, 'Good God, the town works with engineers.' And that's not a scandal," said Ainsworth, adding of Mazzacane's report, "He said, 'corruption, collusion, and lies.' He has labeled it that, but pointed to no objective guidelines."
Ainsworth, a Madison attorney specializing in environmental law, said it is "appropriate, legal and routine" in land use matters for an independent expert hired by the town to have communications with the land use agency and town staff as part of the process.
"When the town doesn't have an engineer sufficiently up to speed on (application details) such as storm water drainage; they hire an independent engineer; that's in the regulations. They effectively have the role of staff," said Ainsworth. "The town uses their staff to review and analyze the applications as its own team. And it is perfectly appropriate, legal and routine for the commission to say (to the hired engineer), '...we have concerns; we'd like to see what you think; might there be alternatives to this?' or whether they're supportable. Then the independent engineer gives responses to that, whether, '...yes, no or we can clarify.' They can react in any number of ways."
Ainsworth said the blog's claims that Shapiro and Ross facilitated changes to better align the peer review results with BCRD objectives are baseless.
"Those weren't uniquely BCRD's ideas," Ainsworth said, noting IWA peer review process for this application doesn't allow for outside communication. "The independent reviewer (does) not have access to BCRD and has not communicated with us."
With regard to Costco, Ainsworth said, "...it has been the position of the applicant to malign us at every turn."
Ainsworth went on to say that, in his opinion, "...until somebody can show me that some rule was violated," to support the allegations, he feels the town is being "victimized."
"The town is being victimized because Costco is attempting to manipulate a tribunal, in my analysis," said Ainsworth. "I believe this is an applicant who is manipulating with the public process, in a very public way."
Clarification: This story has been updated from an earlier version to reflect the town attorney is not involved in the town review process.