Opinion: Harbor Management has it wrong – Farm Creek is in its purview

Mike Mushak
Mike Mushak

Mike Mushak is a former zoning commissioner.

I was shocked to read in a NON article that a Harbor Management Commission (HMC) member said repeatedly in a recent meeting that the 2 Nearwater property on Farm Creek was not in the HMC’s “purview.” That is not what the law says.

Farm Creek is clearly under the jurisdiction of the Norwalk Harbor Management Plan (NHMP), seen at this link, which the Harbor Management Commission (under the guidance of the Norwalk Planning and Zoning Department as their staff) is authorized by law to implement.  The jurisdictional area of the NHMP includes ALL waterfront areas in Norwalk except the Five Mile River Harbor, as seen here in figure 5.3 at this link. Farm Creek is clearly shown within the area labelled “Rowayton-Wilson Point Management Unit” of the area described as Norwalk’s “Outer Harbor.”
The “Inner Harbor” is what we traditionally call Norwalk Harbor, which extends north to Wall Street from a line drawn from Calf Pasture to Manresa Island. Any mention of the word “harbor” from here on in is therefore referring to Farm Creek as well, based on how the regulation is written.

The Harbor Management Commission was authorized in 1984 by City Ordinance, Chapter 69, Article 111 of the Norwalk Code,  to carry out all of the powers and duties granted to harbor management commissions through the Connecticut Harbor Management Act of 1984 (Sections 22a-113k through 22a-113t of the Connecticut General Statutes).

The city’s Planning and Zoning Department is required by law to ensure coordination between the HMC and the city’s land use agencies, including the Planning and Zoning Commissions.

The Norwalk Harbor Management Plan (NHMP) of 1990, approved by the state and city, and amended numerous times as recently as 2009, includes the City’s goals, objectives, and policies for managing Norwalk Harbor in the public interest (except Five Mile Harbor which is under its own Harbor Management Commission, which has no Harbor Management Plan even though the Commission is authorized by state law to have one, and which I believe they should considering the private development pressure in that downtown Rowayton area of traditional water-dependent uses.)

The goals and objectives of the NHMP  are directed toward achieving balance among a number of equally important purposes, including encouragement of beneficial water-dependent use of the harbor and waterfront, conservation of environmental quality, and protection of the health, safety, and welfare of everyone who uses the harbor and waterfront.

The HMC is authorized by state and city law to implement the goals and objectives of the NHMP. This includes conducting a “harbor management consistency review”  on all applications affecting real property “on, in, or contiguous” to the harbor to determine their  consistency with the NHMP.

“The Harbor Management Commission, through its regularly scheduled and special meetings, provides a continuing forum to hear the concerns, questions, and thoughts of City residents, waterfront property owners, water-dependent facility owners, and others concerning the Norwalk Harbor, waterfront, and NHMP.” (Section 1-9, NHMP)

Here are just a few samples of the sixty-nine NHMP Goals and Objectives that all waterfront applications in Norwalk on, in , or contiguous to the harbor need to be determined to be in compliance with through the “harbor management consistency review” process by the HMC, authorized by state and local law:

NHMP Goal 2: Actively manage use and conservation of Norwalk Harbor in the public interest, for the benefit of all City residents and the general public.  Maintain-in accordance with the intent of the CT Harbor Management Act (Sections 22a-113 through 22a-113t of the CT General Statutes) and Chapter 69 of the Norwalk Code- a principal role for the City of Norwalk in the planning, management, and regulation of activities on, in, or contiguous to the Harbor.

NHMP Objective 5.3: “Properly manage, protect, and where feasible, restore natural coastal resources on, in, or contiguous to the harbor, including surface water resources, tidal wetlands, intertidal flats, fisheries resources, shellfish resources, island resources, beaches, floodplains, and other resources; protect and enhance the ecological functions and values associated with natural coastal resources, including functions and values related to fish and wildlife habitat, water quality, and floodwater storage and buffer.”

NHMP Objective 5.6: “Avoid or minimize adverse impacts on coastal resources that may be caused by use and development of the harbor and waterfront; direct future uses and development away from fragile and sensitive coastal resources.”

NHMP Goal 8: “Plan for and regulate waterfront land-use in a manner consistent with the capacity of the natural and man-made environment to support that use, and in coordination with planning and regulation for use of Norwalk Harbor.”

NHMP Objective 8.3: “Ensure coordination between the actions of the Harbor Management Commission and actions of other City agencies, including but not limited to the Planning and Zoning Commissions, for planning and regulating land use on the Norwalk Harbor waterfront; support implementation of the Norwalk Coastal Area Management Plan.”

NHMP Objective 8.5: “Recognize that the harbor waterfront has a limited capacity (carrying capacity) to support land use and development, and that this capacity is subject to change over time; avoid new or expanded uses and development on the waterfront that exceed the carrying capacity of the natural and man-made environment to support such uses and development.”

NHMP Goal 9.2: “Ensure that economic growth and development enhanced by proximity to the harbor are consistent with City and neighborhood character and the carrying capacity of the harbor and shoreline to accommodate that growth.”

NHMP Goal 11: “Protect and enhance the existing quality of life in shorefront residential neighborhoods.”

NHMP Objective 11.1: “Ensure that new development and facilities on, in, or contiguous to the Harbor do not adversely affect the character of shorefront neighborhoods.”

NHMP Objective 11.2: “Provide a continuing public form for the presentation and discussion of all concerns, including the concerns of shore area residents, related to the quality and character of the Norwalk Harbor and shorefront neighborhoods.”

NHMP Objective 13.1: “Conduct an annual review of the harbor and shoreline conditions and of the status of implementing the NHMP.”

Pursuant to Sec 22a-113n of the CT General Statutes, a recommendation of the NHMP with respect to a proposed project SHALL be binding on any official of the State. This contradicts what Harbormaster Griffin is quoted as saying in the NON article, which is that the state has the final say on these matters of waterfront development. Actually, the law states just the opposite, in that the City has the final say through the NHMP.

To summarize, the jurisdiction of the NHMP includes Farm Creek. The HMC is required by law to determine a “harbor management consistency review” for  every waterfront application that is “on, in, or contiguous” to the harbor. The term “harbor” refers to any waterfront location under its purview, not just in Norwalk Harbor itself.

It would appear from the record, including from comments reported in the NON article, that these minimal conditions of review required by the law for both the HMC (through the NHMP) and the Zoning Commission (through CAM) have not been met in this application and in many others, leading one to conclude that this may leave city taxpayers and private developers exposed to appeals and lawsuits from aggrieved citizens and neighboring property owners.

This is serious business, and should no longer be left up to the Planning and Zoning staff to determine what the “purview” is for the NHMP or for CAM for either the Zoning Commission or the HMC, as they have already proven on the record over many years including very recently that they are not implementing their powers under federal, state, and city laws  to protect the public interest in managing our precious waterfront areas. In fact, they are actually violating the laws by not enforcing them as they are required to do.

This includes the legally protected rights of neighborhoods and existing property owners to have the 69 goals and objectives of the state-approved Harbor Management Plan implemented through the HMC, as well as the federal and state Coastal Area Management Acts that require every application to go through a comprehensive review process with written findings produced (not boiler plate rubber-stamping recommended by staff as has been the illegal custom for years.) These written findings that are required to be on the record must  include impacts on 8 categories of coastal resources (CT CAM 22a93 A-H), including any mitigation to those adverse impacts that the Zoning Commission has the legal power to deem necessary (CT CAM 22a-106. e).

As I said at the recent Zoning Commission public hearing, the pendulum is swinging in Norwalk back to where it should have been all these years and decades, towards balancing the legal rights of property owners with the legal rights of the public to have a waterfront that remains part of an integrated Long Island Sound ecology with beautiful natural vistas and shorelines, which is our greatest natural asset.

Trust me, it will not take long for Norwalk’s already compromised waterfront communities to become overbuilt polluted messes with huge houses and docks lined up cheek by jowl, which has already happened in many other parts of the country including many once-beautiful towns along the NJ shore where I grew up (which happened in my lifetime), prompting conservative property rights advocate Governor Chris Christie to actually demand tighter regulations and more enforcement to protect what little natural waterfront is left in that nearby state.

We can’t let that happen to Norwalk, which may only take a couple of decades if we continue at the rate we are going, ignoring our federal, state, and local laws with impunity and pretending that anyone can build anything they want at any size no matter the cost to neighborhood character or the environment.

Just drive around Pine Point in Rowayton, and weep for what already has been and what is currently being lost in that once-quaint New England coastal town of fishermen’s cottages. Weak zoning restrictions are what has allowed this to happen, combined with the constant refrain from staff that “that is not in your purview” when most of the time it is according to the law.

Don’t ever forget that even the mosque application that horrified so many because of its size actually followed our zoning code to a T. That is exactly why they bought the property,  because of a broken zoning code that still has not been changed. And another BJ’s-style retail establishment over 100,00o square feet in size  can still go in on Main Ave., since that code was not changed by Republicans on the Zoning Commission despite the advice of professional planners to limit retail size in that stretch, in a $200,000 study paid for by taxpayers.

And just follow the money by watching who defends this broken system as our waterfront is routinely over-developed: Republicans and well-connected law firms who stand to make fortunes as they systematically destroy the waterfront character of Norwalk that we all love so much. Just look at the public lynching of Zoning Commission nominee (and dedicated public watchdog) Nora King by Councilman David McCarthy, who reportedly was working on the advice of land-use lawyers with business before the commission, to see what lengths this crowd will go to to protect the entrenched corrupt interests who are in it only for the profits.

Please remember who is protecting your interests on election day, and demand that the Planning and Zoning staff follow our existing laws to protect our waterfront communities from being ruined within our lifetimes,  turning us into just another mediocre overbuilt shore town that has lost all of its character and natural beauty, not to mention the adverse impacts on the fragile Long Island Sound that is slowly improving, but still has far to go in its recovery.

Once it is gone, it is gone forever.


9 responses to “Opinion: Harbor Management has it wrong – Farm Creek is in its purview”

  1. John Hamlin

    Unfortunately what should be a nonpartisan issue or a bipartisan interest in sensible zoning regulation and expert planning seems to have devolved into a partisan issue. Republicans support the current dysfunction and unfettered rights of property owners regardless of the consequences. They champion the status quo in planning and zoning. They have had their chance to reform the zoning regs and deliberately failed to do so. They defeated zoning reform advocate Nora King for a seat on the zoning commission because she was an “activist” ( meaning she was in favor of reform). Republicans own the zoning mess now, although they will duck and cover this November. Make them accountable for the mosque debacle, the BJs debacle, and route one big box heaven. Or if you reelect them, don’t lament when you get more mosques, no planning, and more dysfunction.

  2. Sarah Waters

    Thank you Mike Mushak!!

  3. MPT

    Thank you Mike Mushak! One comment…please don’t lump all us Republicans into this group of old school Norwalk Republicans that are holding back progress and positive change. There are those of us that don’t support them or their behavior and that do support everything that Mike talks about in his op ed. We want change and we want progress and we are working on a bipartisan level to help make it happen. Thanks!

  4. Tony Mobilia

    Tony Mobilia, Norwalk Harbor Management Commissioner:
    Just to be clear about the Harbor Management Commission’s role in protecting the harbor. Yes, Farm Creek is within the jurisdiction, but from below the mean high water mark. This is something we have to wrestle with all the time. Please see this link: http://law.justia.com/codes/connecticut/2009/title22a/chap444a/Sec22a-113k.html
    The Norwalk Harbor Management Commission is a nine member commission, and does conduct a “harbor management consistency review” on all applications sent to us affecting real property “on, in, or contiguous” to the harbor to determine their consistency with the NHMP with other commissions.

  5. Mike Mushak

    Tony Mobilia, the jurisdiction line is described for ownership purposes only. You are getting tripped up in the language, which was likely helped along by staff and lawyers for applicants who have been known for giving out misleading information. The CAM law says the same thing, even though it is accepted that the jurisdiction of CAM extends beyond the high water line in the language of the law itself.

    It is clear by the language of the Harbor Management Act including the phrase “real property on, in, or CONTIGUOUS to the harbor” as well as the entire body of the goals and objectives, that the jurisdiction of the Harbor Commission extends well beyond the high water mark to include all flood zones, upland habitats, beaches, and any property private or public that affects the health and quality of the publicly owned land that is up to the high water line.

    This is common sense, as water flows downhill into publicly owned areas from surrounding properties whose condition directly affects the harbor ecosystem and water quality.

    Just explain to me how you determine what is “contiguous” real property that you say you review if it also has to be below the high water line. Your own statement is contradictory and irrational, with all due respect. I believe you have been misled.

  6. Mike Mushak

    Tony Mobilia, with 8 Republicans on the Harbor Management Commission, its no wonder they are trying to confuse the lone Democrat by telling you the Harbor Management Commission has no jurisdiction above the high water line. Again, that phrase refers to ownership only, but not to legal regulated area.

    Attorney Hennesy used the same argument in the 2 Nearwater hearing, telling the Zoning Commission that CAM had no jurisdiction above the “coastal jurisdiction line” of the high water line, and as soon as he finished his consultant got up and stated what most of us knew in the room already (and what every land use lawyer knows), that the jurisdiction of CAM extends into the floodplain or 1000 feet, whichever is further, which is the “regulated area” that only BEGINS at the “coastal jurisdiction” line. Again, it refers to ownership, not regulated area.

    The same logic holds true with the Harbor Management Act, which is not as specific as CAM in its language but it is clear the intent of the law is to regulate “contiguous” real property to the harbor as you confirmed yourself, which is the language taken right out of the law. “Contiguous” real property by definition means “near, next, or adjacent to” the harbor, as indicated by the legal phrase itself: “”real property on, in, or contiguous to”.

    There can be no interpretation of that phrase to mean contiguous real property to the harbor is still underwater, unless of course you would have a strong motive to suppress the intent of the law that was enacted to protect the public interest as well as their and health, safety, and welfare.

    Here is the language of the CAM law that clearly states that regulatory powers of the government agencies extends beyond the “coastal jurisdiction line”:

    “(b) Within the coastal area, there shall be a coastal boundary which shall be a continuous line delineated on the landward side by the interior contour elevation of the one hundred year frequency coastal flood zone, as defined and determined by the National Flood Insurance Act, as amended (USC 42 Section 4101, P.L. 93-234), or a one thousand foot linear setback measured from the mean high water mark in coastal waters, or a one thousand foot linear setback measured from the inland boundary of tidal wetlands mapped under section 22a-20, whichever is farthest inland; and shall be delineated on the seaward side by the seaward extent of the jurisdiction of the state.

    g) All property lying within the coastal boundary shall be subject to the regulatory, development and planning requirements of this chapter.”

    I hope the Harbor Management Commission has not been defining “contiguous” real property to mean underwater. If so, we are in an even bigger planning mess than many of us thought.

  7. Mike Mushak

    Tony Mobilia, has the Harbor Management Commission completed its legally required “harbor management consistency review” of 2 Nearwater, which is “on, in, or contiguous to the harbor”, in particular whether it meets the goals and objectives of the Harbor Management Plan that I outlined above (in particular 5.3, and 8.0) as well as the 58 other ones that I did not list?

  8. Tony Mobilia

    Mike Mushak, you know as a former Zoning Commissioner, it would be improper and possibly illegal to discuss an application under review.

  9. John Hamlin

    Sounds like you already did.

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