A Stamford developer's controversial plan to build a 96-unit apartment building on lower Bronson Road by the Mill River was approved Thursday night by the town's Inland Wetlands Commission.
"We're pleased with the decision and we're looking to move the process forward to Planning and Zoning," John Fallon, the lawyer for Garden Homes Management Corporation, said after the vote in Sullivan-Independence Hall.
Kathryn Braun, the lawyer for opponents, said she was disappointed by the vote and wished the commission had decided that more soil testing for contaminants should be done. She said the developer didn't test soils in areas recommended by the town's Conservation Department.
"The decision could have been, `Please go do the testing and come back to us.' The burden is on the applicant to ensure the commission is fully informed before making a decision," Braun said. "If you choose not to require testing in areas of the property that would most likely hold contaminants, then you don't have enough information."
"The commission is in the right to deny an application based on inadequate data," she said.
Braun said the commission should have required soil testing in a tributary, and wetlands around it, on the 2.7-acre site at 92 and 140 Bronson Road.
Krista Grant, who lives next to the property slated for development, also said more testing of soils should have been done.
Grant said opponents would continue to fight the project when the application goes to a hearing before the Town Plan and Zoning Commission. Grant said she founded the Lower Bronson Neighborhood Alliance in reaction to the project and is soliciting support through the e-mail address firstname.lastname@example.org.
Before the vote, Kate Maxham, the commission's vice chairman, said the question of whether more soil testing should have been done came down to a "battle of the experts." Garden Homes Management's soil scientist believed enough testing had been done, while the opponents' soil scientist believed more should be done.
During a March 6 public hearing, opponents testified that the property used to be a farm at a time when now-banned pesticides were in use. But Jay Soltis, a consultant for Garden Homes Management, said at the hearing that the site was "a personal use farm, not a commercial operation," and Mark Branse, Fallon's colleague, said 12 test pits had been dug.
On Thursday, Kevin Gumpper, the commission chairman, said no contamination had been found in areas that had been tested.
But Richard D'Amico, a commission member, questioned why Garden Homes Management did not test in areas recommended by the Conservation Department. "I'd like to know why, after the agency requested those areas be sampled, they were not," he said.
Commission member Catherine O'Donnell said, "I'm not sure I ever got the sense they tested where they were supposed to."
Gumpper said Garden Homes Management's failure to test soil in areas recommended by the Conservation Department was "worrisome." But, he added, "To the extent we know what's in the dirt, we know there's nothing bad in the dirt." Gumpper said an environmental intervention filed by opponents and the opponents' consultants never said pollutants were on the site and, if they were, what the impact would be on the tributary or wetlands. "I think they missed the link ... I think they have to tie it in," he said.
Gumpper said the Mill River was outside the jurisdiction of the commission because it was a tidal watercourse and therefore regulated by the state Department of Energy and Environmental Protection. He said the commission could consider the only development's impact on a tributary on the site and wetlands around the tributary.
Elizabeth Jones, a commission member, said, "I agree we don't have jurisdiction of the river, but I wish we did." Braun said she believed the commission had "dual jurisdiction" of the river with DEEP.
The commission voted 5-2 to deny the environmental intervention, which required commission members to determine if the project was "reasonably likely to have the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state." O'Donnell and Jones voted not to deny the intervention.
Gumpper said court decisions have said a commission can only consider areas under its jurisdiction when voting on an environmental intervention. "It's not the way I would read it [the state statute], but it's not up to me," he said.
After voting on the intervention, the commission's voted unanimously to approve the application with a series of conditions. It wasn't immediately clear if Garden Homes Management agreed with all of the conditions.
Braun said it was too early to say if opponents will appeal the commission's decision in Bridgeport Superior Court. "I still have to review the entire decision, and the interveners would have to make that decision. I can't make it for them," she said.