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Connecticut hearing officer weighing tons of testimony in Washington Village challenge

Diane Lauricella speaks recently in City Hall.
Diane Lauricella speaks recently in City Hall.

NORWALK, Conn. – Norwalk activists trying to stop Washington Village from being rebuilt in its current location did not present any experts or evidence to back up their claims, the Norwalk Housing Authority asserts in a brief submitted to the state hearing officer holding the fate of the project – and possibly the $30 million in federal money earmarked for Norwalk – in her hands.

The Friends of Ryan Park in their reply brief do not answer that claim, but Diane Lauricella complained during the last hearing held by the Connecticut Department of Energy and Environmental Protection (DEEP) that state experts had refused to testify.

Construction on Phase I of the Washington Village makeover was initially expected in October, but has been held up by a challenge to the project’s expected DEEP exemption in flood management filed by Friends of Ryan Park (FoRP) President Ganga Duleep. The first hearing was held here in December, and two hearings were held in Hartford in January. Final briefs were filed on March 27.

“There’s no specific required time frame for decision,” DEEP Communications Director Dennis Schain said in an email. “We will issue a decision as soon as possible given the high level of public interest in this matter, while taking the time needed to carefully assess all relevant issues and legal questions.”

Lauricella and Duleep have been campaigning to have the Washington Village site design reversed, so that Ryan Park would be on Water Street. Norwalk Housing Authority (NHA) officials say that would hold up the project, a delay that would put the $30 million U.S. Department of Housing and Urban Development Choice Neighborhoods grant at risk because there would be no way to meet the 5-year deadline that comes with the grant.

Mayor Harry Rilling last week released a statement sayingthe city will not contemplate such a plan. Lauricella declined to comment.

Transcripts and briefs obtained by NancyOnNorwalk show that Hearing Officer Janice Deshais is focused on the amount of pollution that would be created by the project, a collaboration of the Norwalk Housing Authority, the Connecticut Department of Housing and Trinity Financial. Much of the challenge revolves around whether there are alternatives to the Day Street site.

Deshais must rule that the project is in the public interest and will not cause harm to people or property if she is going to approve the waiver.

An excerpt from FoRP’s final brief, signed by Duleep, a reply to the NHA brief filed March 13:

“DOH/NHA define ‘Public Interest’ very narrowly to mean only the interest of the 136 tenants of the current Washington Village Project and not the interest of the 86,000 citizens of Norwalk or of the long suffering taxpayers of Norwalk, the State of Connecticut and all Americans across USA.

“This proceeding raises important public policy issues regarding the applicability of state flood control and management standards when building within the 100- and 500-year Floodplain.

“While the Friends of Ryan Park (FORP) admit that modern society can engineer anything, is it wise to do so, given greater taxpayer expense and risk of injury to property and persons, especially WHEN SEVERAL VIABLE ALTERNATIVE SITES EXIST UPON WHICH TO BUILD AT LEAST A PORTION OF THE PROJECT?

“This proceeding also demonstrates that without the Hearing Officer giving FORP the ability to discuss these viable, City-owned alternative sites fully, the record is incomplete, legally prejudicial and puts people and the environment in harm’s way.

“Thus, in every respect, this is not a routine application deserving of routine review.  While it is fortunate that Connecticut lawmakers, the Governor’s Shoreline Task Force, the Federal Government and Presidential Order have anticipated situations like this, we are at a loss as to why the CTDEEP would still allow constructing many large buildings within the 100- and 500-year Floodplain without first considering and thoroughly examining each of the existing alternative sites, many lying outside of that very same floodplain.”

Lauricella attended both Hartford hearings. She said nothing at the first, evidentiary, hearing but helped Duleep in cross examinations at the final hearing, according to the transcripts.

“We respectfully object that we were not allowed to present our case concerning alternatives in the public interest,” Lauricella said on Jan. 6, according to the transcript.

“I’m not required to consider them until I make a finding under 22a-19.  That’s the way the statute works,” Deshais said.

Lauricella brought it up again later in the hearing.

“You made a ruling that we could not present alternatives at this hearing,” Lauricella said.

“The Statute – unless I can find reasonable pollution – the Statute and Case Law does not permit me at this point in time to make a determination of alternatives,” Deshais replied. “We go ahead and we can have an entire hearing right now about alternatives, and it would mean nothing if I found no unreasonable pollution. So, that’s just a waste of resources and time. If, in fact, I find unreasonable pollution, I will re-open the hearing, and everything will be allowed on alternatives.”

“The exemption is being granted without the chance to discuss alternatives of the building positioning in the Choice Neighborhoods area, and because we are not allowed to be on the record to discuss that, the public interest is at risk. That’s the point,” Lauricella replied. “One of your four criteria, ma’am, is not being fairly litigated here because you’re not allowing us to present alternatives to the application that they are – it includes the dry egress (through Ryan Park), but it’s also the building design.”

“Respectfully, I cannot do that if I don’t have the ability, under the Statute, to consider alternatives,” Deshais said. “What can I do? How can I –“

“The public interest –“

“The public interest includes alternatives? I don’t believe that’s –“

“Where the buildings go and where the egress goes and where flooding goes.”

“I don’t believe that’s the definition of public interest,” Deshais said.

“Well, I respectfully object to that,” Lauricella said.

Alternatives to the site were mentioned several times in the hearing. One such alleged site would be next to the South Norwalk train station. Redevelopment Agency Executive Director Tim Sheehan said it isn’t big enough; on Dec. 19 Duleep questioned him on that topic.

“Where or why should this development all be clustered together in one site?  Is there a reason for that?” Duleep asked Sheehan.

Deshais intervened.

“Well, is that within the scope of – that’s not really within the scope of it,” Deshais said. “I mean in this hearing, they have their development.  And we’re not here to have an alternative plan.  This witness has said we needed six acres or in excess of six acres and we looked at these other – and you have a right to ask him, did you look anywhere else.  But you don’t really have – it’s not within the scope of this hearing to say well, could you break up the housing – the housing project and do it in two or three?  I mean that’s, you know, again, we talked about the fact that if I find a reasonable collusion then we will have a hearing on alternatives and those kinds of things would be relevant.  But at this point in the process, they are not.”

An excerpt of NHA’s final brief:

“DOH   has   met   its  burden   of   both   proof   and persuasion   and  has  shown  by  substantial  evidence  that  all  four  criteria  required   for issuance  or an  exemption  have  been  met. Nothing  in  FORP’s brief  leads  to  a  different conclusion.   FORP’s brief illustrates only that it misunderstands the process, the facts and the law.” 

A further argument:

FoRP: “Norwalk used State Funds at Ryan Park, therefore any attempt to use the Park for dry egress will trigger Ct State Statute 7-131.n which requires the Park be compensated with adjacent land, which would be #20 Day Street, the subject of this exemption request.”

NHA reply: “FORP’s “claim” to 20 Day Street is without foundation and totally misreads the provisions of C.U.S. §7-131n. First, that statute provides  that  when  a municipality takes land previously dedicated  to  park,  recreation  or  open  space  use  for another purpose, the municipality must provide a comparable replacement  for the lost  park, recreation  or open  space  land.    FORP  maintains  that  when  the  City  provided  parking in Ryan Park  it violated  the  restrictive covenant  and that its ‘legal claim’ to 20 Day  Street is to  compensate   for  the  loss of park use. Clearly, C.G.S.  §7-131n provides no basis for such a claim by FORP: nor is there any evidence in the Record that FORP has done more than deliver a letter to the Norwalk Common Counsel approximately two years ago.  Lastly, it is clear that the alleged loss of recreational use occurred years ago and has no connection with or relevance to, this proceeding.”

“We had three State people that would not – that are experts on pollution and the points of this case. They have refused to come to speak, and we wanted to request that you consider please compelling them to speak,” Lauricella said to Deshais on Jan. 6.

“Well, we already talked about that,” Deshais said. “When we had the pre-hearing process, you had a chance to file the motion during the pre-hearing process to request a subpoena. They would have had an opportunity to file a motion to quash the subpoena. There would have been a ruling on that.”

At another point, in questioning Sheehan, Lauricella said the city’s “strategy is to defame.”

“I don’t need editorializing. You know, there’s no jury here. You’re talking to me and, really, I’m not going to be impacted by innuendos and editorials. I mean, it’s not going to help you or anyone,” Deshais said.

“Now, my final decision will include the finding on unreasonable pollution. If I find that the project does have a reasonable likelihood of causing unreasonable pollution, I’ll continue the hearing on alternatives,” Deshais said.

Asked on April 2 if she was feeling political pressure, Lauricella said, “I am feeling political pressure. The silence is loud.”

The goal has been to save tax dollars while helping the residents of Washington Village, she said.

“I hope that the local officials and state officials will realize the value of what I have tried to encourage, which is transparency and open thinking about how to do this project, more creative thinking about how to do this project. I think we can come to the same end goal, less expenses and smarter growth,” Lauricella said.

It’s just a different perspective on how to get to the same number of housing units, the same mixed income development, she said.

“It’s disappointing that several officials haven’t had the wherewithal to ask for a sit down to discuss the alternatives,” Lauricella said.

Sheehan addressed this concept in an email to NoN last week.

“The position of the City and the Norwalk Housing Authority has NEVER been that there was no alternative site for this development,” Sheehan wrote. “Our position has been that the alternatives that were explored were deemed to be both cost prohibitive from a land acquisition perspective and that most involved the acquisition of privately owned property that neither the City nor the Housing Authority could affirmatively state it could successfully acquire.  Further, the relocation of the project outside of the target neighborhood was a major concern for the public parties and HUD who has controls over the Washington Village site.  As you are aware the approved project is currently located on six plus acres of publicly owned land in the target neighborhood. Having site control was an important part of the Choice Neighborhood Application, which could not have been represented using alternative sites.  I am unclear of the six acres of adjacent or contiguous unencumbered publicly owned land that Ms. Lauricella believes exists in the target neighborhood.”

Target Area Map

Sheehan had a reply to Lauricella’s comments about building in a floodplain: Gov. Dannel Malloy supports it, he said.

Malloy, while touring the Washington Village site in 2013, was asked by former Common Councilwoman Anna Dulepp about rebuilding in a floodplain, according to the Stamford Advocate.

“Let me say this,” the Advocate quotes Malloy as saying. “We’re in the waterfront of Connecticut, and you’d be hard-pressed not to build in a floodplain, from Greenwich to Stonington. The reality is how do you build smart, and that’s what this project does. You’d have to back off from whole swaths of communities if you had to do that, and frankly, we don’t have the land.”

The CT Mirror, in a March 2013 article, quotes Connecticut Housing Coalition’s Betsy Crum as saying that DEEP’s policy puts housing advocates and agencies in a difficult position.

“They’ve historically had this blanket prohibition against funding anything that’s in a floodplain, and that’s frankly cut out a lot of potential new development,” Crum is quoted as saying. “It’s also made it very difficult for existing housing that’s in the floodplain to get funding to bring them back up to standard.”

Regarding the $30 million grant, Lauricella said, “If anything is lost it’s because the staff dug in their heels long ago not to put forward the truth.”

“Regarding digging in heels, this redevelopment project has involved many neighborhood stakeholders from the beginning with many people offering their opinions and comments,” Sheehan wrote. “As with all large development projects there is never just one voice, opinion or issue, but many.  Ms. Lauricella’s particular opinion deserves to be heard, but it carries no greater weight than the opinion of anyone else.  As your review of the public record will determine there are far more voices that support this project than those that share Ms. Lauricella’s opinion regarding it.  Her statement that residential taxpayers cannot locate or develop in a floodplain is inaccurate.  There are many residential taxpayers in Norwalk and across Fairfield County that choose to develop and live by the water in the floodplain without providing any alternatives as she indicates.”

 Transcript – Washington Village Public Hearing – December 19, 2014 (00747057)

Transcript – Washington Village DEEP Hearing 1-6-15 (00741150)

DEEP Staff Brief

FRIENDS OF RYAN PARK Brief

CT DOH – Facts and Conclusions of Law

Washington Village Draft Reply Brief 032615 [2]

Reply Brief of the Housing Authority of the City of Norwalk (00762846xADB93)

Comments

6 responses to “Connecticut hearing officer weighing tons of testimony in Washington Village challenge”

  1. Mrs. Ruby McPherson

    The project MUST go on Diane, we just want to keep Ryan Park as is, without the egress( emergency road) running through the middle of the park. Besides if we should have another Sandy, people would be notified in time to leave or park their cars in other places. So let it go.

  2. Oldtimer

    If the issue is an escape route across Ryan Park, what advantage does that route offer over existing paved streets ?
    When there is a flood event, there will be some warning. Past history shows that most flooding in that neighborhood will not affect cars parked a few inches higher than the present Water St sidewalk in front of Washington Village. Designing the new buildings, and the parking areas, so the parking is that much higher should not be that difficult or expensive. The rare flooding that would mandate evacuation would have enough warning that evacuation by way of existing paved streets should not be a problem. Why plan a route across Ryan Park ?

  3. Haley

    Before the city knowingly rebuilds in a flood plain, can someone please check with the city’s insurers?

  4. Casey Smith

    You go, Diane!

    Just keep holding up that project until they cave or lose the funding. After all, the people who live there can just get along as they have been without new buildings. It’s far more important that your plan be adopted than it is for them to have an improved quality of life.

  5. srb

    The Washington Village project should go through. While it may not be the ideal, it will be an enormous improvement upon what’s there. Let’s not risk losing $30+ million because someone is ideologically opposed to the project. There are loads of buildings erected in 100yr and 500yr flood plains. Duleep (who’s own property is an embarrassment to the City and should be an embarrassment to her as well) and Lauricella want the City to essentially revise and redo everything. If they want the City built in their vision let them run for office and win.

  6. Bobby Brown

    Have all finished first floor elevations be above the 500-year flood plain elevation, problem solved. No need to spend more money to relocate further away.

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