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February 27, 2012

Developers target intervenor rules | Vital environmental protection or sign of anti-business climate?

PHOTOS/PABLO ROBLES Richard Hayes is one of several developers pushing for changes to the controversial state environmental law 22a-19, which he says is partially to blame for his proposed Home Depot project in Vernon never getting done. Now the land for the development remains a vacant field.

Developers and other business interests are gearing up for a legislative fight in an attempt to change one of Connecticut’s key environmental protection laws that they say is being abused and makes the state one of the most unfriendly places to do business.

The law, known as 22a-19, is part of the landmark Connecticut Environmental Protection Act and allows any individual to intervene in an administrative proceeding if they have concerns that a development will negatively impact the environment.

The intervention status allows development opponents to become a “full party” to any regulatory proceeding, like a wetlands commission hearing, and challenge permitting decisions to the courts, which can tie up proposed projects in the judicial system for years, creating tens of thousands of dollars in legal fees and delays that derail developments.

Developers say the law is overly broad and allows people to block developments simply by raising alarm bells without having to show proof of the environmental risks.

In some cases, developers say, intervenors are backed by business interests looking to block a competitor from entering the market or by individuals who simply oppose development.

The law has been an issue for decades, but attempts to change it haven’t gotten anywhere.

That could be changing. As legislators, including Gov. Dannel P. Malloy, look to make Connecticut more business friendly, a bill to reform the measure is gaining some momentum, although passage in 2012 remains an uphill battle.

“As the law is presently written, instead of being used as a shield to protect the environment, it is being used as a sword by people who oppose development,” said Harold Cummings, an attorney for the town of Vernon.

Cummings says he has seen firsthand the negative implications from the law. He blames 22a-19, in part, for derailing a proposed Home Depot development on a 14-acre site off I-84 in Vernon, a plan initially hatched in 2000 but that later died after being tied up in court for nearly a decade.

The case is complicated. The town initially rejected the project over environmental concerns, but later reached an agreement with the developers, including Richard Hayes, on how to build it without endangering nearby waterways.

But a group of concerned citizens kept the court battle alive by demanding and eventually being granted intervenor status.

The case went in and out of the state’s superior and appellate courts more than a half-dozen times and passed through the hands of 13 judges. When given the opportunity to present environmental impact evidence, however, the opponents’ attorney failed to produce any witnesses or evidence, court records show.

Meantime, Home Depot pulled out of the development, costing the town 200 permanent jobs and $350,000 a year in property taxes.

Hayes said he has had three other developments delayed for years as a result of 22a-19, including cases where competitors to a proposed Stop & Shop gas station and McDonald’s fast food restaurant were the intervenors. Now Hayes has become one of the most ardent supporters of reforming the law.

“If people think I’m attacking this from an environmental standpoint, they are wrong,” Hayes said. “I’m attacking the abuse of the process.”

Derek Oatis, a lawyer who represented the intervenors in the Home Depot case, said blaming 22a-19 for the death of the project is “ridiculous.”

Instead, he blamed the town and developer for negotiating the scope of the development without input from the intervenors or other concerned citizens.

Regardless, 22a-19 has become the hot-button issue in the development community, which is hatching a proposal to reform the law.

Privately, industry insiders say they want the law repealed entirely, but the likelihood of that happening in an environmentally conscious state is slim.

Instead Hartford lawyer Diane Whitney, who has been working with developers on the issue, said there needs to be several safeguards added into the law. That includes requiring all parties involved in the intervention, including those who fund it, to identify themselves so that business interests only looking to prevent competition from entering the market can be sniffed out.

Whitney said the law also needs to require specific environmental concerns to be identified in the intervention petition, so bogus claims can be thrown out earlier in the process.

Developers also want a 30-day time limit for intervenors to show evidence of environmental hazards, and make intervenors who pose false environmental claims to be responsible for paying legal fees.

“We hope to put some standards and time frames in place so that you can’t come to the last public hearing and allege environmental concerns that are going to kill an application,” Whitney said.

Environmentalists are pledging to fight to protect the law.

“It is one of the landmark environmental laws that helped clean up our water ways,” said Roger Reynolds, a senior attorney for Connecticut Fund for the Environment. “It is at the absolute center of environmental protection.”

Reynolds said 22a-19 is an important law because it gives ordinary citizens the right to demand that natural resources including waterways are kept clean and safe. Without the law, Reynolds said the only people who would get a voice in the regulatory process are developers and business interests pushing land use projects.

He said he has concerns about changes being sought by developers because they will discourage public participation and intervention.

“We must avoid efforts to take a system of public participation and radically shift it in favor of developers,” Reynolds said.

Even making modifications to the law that try to separate “good and bad intervenors gets very difficult,” Reynolds added. “What we need to be doing is not focusing on old battles about building large controversial projects in green fields and instead promote smart growth.”

Developers say their opposition to the law is not about opposing environmental protection. They say Connecticut already has a rigorous set of rules and regulations in place to protect the state’s natural resources, but 22a-19 gets abused for non-environmental causes.

Developer Michael Goman said once intervenors bring a case to court, the action delays a project for at least two years, costing at least $50,000 in annual legal fees.

In his 16 years as a developer in Connecticut, intervenors petitioned to become part of up to a third of the projects he has been involved in, Goman said. He said the law makes trying to entice new investors, developers and retailers to the state extremely difficult because it is one of the key risk factors in determining the financial feasibility of a project.

As a result, 22a-19 has a larger impact in deterring developments from even getting off the ground, Goman said, because the risk scares off investors.

“If you are an opponent to a development for whatever reason, it’s a good tool to create a delay,” Goman said. “If you create a long enough delay, you can kill a project. Developers typically anticipate that they will win the case, but they end up losing because it takes too much time.”

The environmental lobby is one of the most powerful interests at the State Capitol, but lawmakers from both sides of the aisle are taking a serious look at reforming the law.

Sen. Steve Cassano, D-Manchester, who co-chairs the development and planning committee, where a bill on the issue is expected to originate, said he is interested in putting safeguards into 22a-19 that force more transparency and disclosure including making intervenors identify themselves and explicitly describe their environmental concerns.

He said he has seen developments derailed or delayed in his town because business interests have hidden behind the law to block a competitor’s project. “It’s not an anti-environmental bill. It’s an anti-dishonesty bill,” Cassano said. “There is a point where you have to have legitimate standing.”

 

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