For the record
Published 1:01 am, Friday, November 6, 2009
My frustration about falsehoods and distortions in letters to the editor has been building again, this time regarding the third train station project. A few critics keep repeating the same misrepresentations.
After carefully weighing the facts, the town's ethics commission rejected, for a second time, an ethics complaint by critics (which they lodged after losing every previous case they have brought in the judicial and administrative law systems).
First, they suggest that the ethics commission members are political appointees by first selectman, implying that Ken Flatto somehow controls the commission. Such a claim is outrageous and ridiculous, and to my knowledge no political opponent in town has ever made such a charge. Commission members must be nominated by a unanimous vote of the Board of Selectmen and must be approved by the RTM, whose members from both parties unanimously supported the current committee members. The ethics commission is currently made up of a former FBI agent, a local businessman who formerly headed the Kiwanis club, a former head of the Police Commission, a Dean at Fairfield University and a state social services counselor.
Second, the critics claimed that a provision of the town charter allowed the accusers "judicial review." But such a contention is based on a blatant misreading of the charter, which allows judicial review only to "any affected individual in a finding" -- that is, any accused person who has been found by the Commission to have committed an ethical lapse. There was no such finding in this case, so no judicial review is authorized. In practice, ethics committees play the role of "last resort" arena for accusers after they have failed to get any legal judgment in their favor in any other arena. The process is not meant to encourage false accusers to go on forever after losing every case, bouncing back and forth between courts and ethics committees with frivolous accusations and appeals in hopes that something will stick, going for press coverage with each new attempt.
The recent ethics accusation itself was meant to dredge up the whole past episode of the Flatto administration having to reassign Conservation Director Tom Steinke from oversight of the project. In the train station case, the environmental cleanup was governed by the three-party agreement among the town, the state and the developer, and the site is under the control of the state Department of Environmental Protection. It was not a toxic waste site; in the 1980s the state had required Bullards to remove some troublesome materials, and the soil is now only tainted by some old petroleum residues. The current practice for such a site, accepted by the state DEP, is to seal and cap the site (in this case, partly with a parking lot), so that rainfall and snow-melt run off in a controlled way through drainage pipes, rather than soaking down through the soil toward ground water and Ash Creek, as it now does.
Reportedly Steinke was opposed to this approach mandated by the state DEP. He wanted all the soil removed -- as if it were a toxic waste issue and we could return to the 19th century before the area became industrial or commercial. The prohibitive cost of such an infeasible approach, the many times that the DEP-mandated plan of capping and sealing the site, would financially eliminate any chance of a private plan to revitalize the site and control the precipitation runoff. Fairfield's own Conservation Commission rejected Steinke's extreme proposals.
In any case, from what I read in the papers at the time, it seemed that Steinke and his staff were continually introducing overzealous procedural requirements and criteria that were not part of either the governing agreement or the conservation permit, resulting in halting the work. In effect, he was moving the goalposts every time the developer was about to make a stride in carrying out the project. It seemed to me that Steinke had lost objectivity and perspective regarding this project. When the developer was about to file a lawsuit against the town for what they considered obstructionism, the Conservation Commission and Flatto reassigned Steinke from oversight, transferring the responsibility to a respected outside environmental consulting firm. Their independent review seems to have indicated that the only violation on site was minor: incidental damage to one drainage pipe, disclosed by the developer's own site monitor and repaired without any leakage of storm water from the pipe. All town bodies who have reviewed the town's actions in this matter have judged them to be the proper exercise and proper functioning of our town government.
What is happening now regarding the train station project? The developer has lost his credit lines, as have developers all over the country amidst the current financial crisis and credit scarcity for commercial real estate projects. Back when the Flatto administration renegotiated the previous Republican administration's deal with the developer and the state, Flatto got new conditions that were much more favorable to the town than those originally arranged by former First Selectman John Metsopoulos and his town attorney, Jim Baldwin.
Metsopoulos and Baldwin had set the town's taxpayer costs at $24 million, whereas Flatto got the state and the developer to agree to reduce town's ultimate share of the costs to less than $1 million. Flatto convinced the developer to shoulder more public obligations and costs, which the developer consented to when there was hope that the projected commercial development might come to fruition.
With private financing now gone and future commercial development hopes dimming, the developer has had to stop his own work and further investment, as have developers in projects all over the country.
Now the state Department of Transportation has stepped in to ensure the essential remaining work gets done on time, as they should. They are also pushing the developer to do more. Not surprisingly, a notice of foreclosure has been filed by the developer's bank, which is in a slow court process and could lead to the developer losing the land unless a settlement is reached or new financing becomes available. In this situation, Black Rock Realty is no more a "deadbeat developer" that are countless other victims of the current unprecedented recession and freeze-up of commercial development credit. The developer had already spent more than $10 million on site-related work, has given the town $800,000 as a cash bond toward conservation work required on the site, has removed the old Bullards factory, and is still hoping for a restoration of credit and the chance to go forward with remaining work on the project.
The developer has not provided the town with a $500,000 "letter of credit" in part to help construct passenger depot called for under the current agreement. But the developer has not abandoned his plan of building the depot, either. There is no penalty for failure to provide this line of credit. (Notably, the original agreement that was negotiated by Republicans Metsopoulos and Baldwin reportedly did not include any penalties or enforcement provisions either, for the developer's failure to do work.)
The only option the town or state has for punishing the developer is to abrogate the whole agreement on the project. While this is what a few critics of the project have been calling for, at this point it would gain the town nothing. In fact, the town and the state would lose leverage and they still have to work with the developer who owns some of the land needed for the public train station project. The responsible approach now is to continue to work with the state and the developer in hopes that the credit situation may improve and the agreement (very favorable to the town) might be able to proceed in some form.
Ironically, had the project not been held up for so long by conservation delays, the depot and train station would have been functioning before the financial crisis hit. We can only hope that this train station plan can be completed, bringing cleanup of a long neglected site, a new station with commuter parking, and jobs. And we can only hope for more candor and accuracy from our local Republican leaders. It has been like hearing that there are weapons of mass destruction in Iraq, or that the president is planning death panels for elderly people, only right here in River City! Enough already.
Alan G. Smith is a Fairfield resident.