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EAST LYME — A 23-home subdivision proposed in 2017 for an 90-acre parcel located just north of I-95 Exit 71 along the Four Mile River has been volleyed back and forth in litigation for three years between the town and a neighbor. It will remain in court until a judge decides whether the town can legally waive one of its regulations requiring an environmental review by an outside agency.
Brian Lepkowski, whose property abuts the proposed project, said he awoke one morning in 2016 to the sounds of an excavator being unloaded across the street from the home he built on Green Valley Lakes Road in 2015.
“And that’s when I went out and I met Bob Fusari [Jr.], whom we’ve been battling for all of these years. He said he was purchasing this lot and putting 25 homes in there and showed me a map that made my eyes bleed,” Lepkowski told CT Examiner.
He and his wife, Diane, purchased their lot in 2014 because they wanted a secluded place to be in nature, and, Lepkowski said, they were told by the town that the abutting property — that includes a section of Four Mile River— was “unbuildable.”
Fusari proceeded to apply to the town’s Inland Wetland Agency for a permit to build 25 houses and his application was unanimously denied in Sept. 2017. Fusari appealed his application but then withdrew it.
After the 2017 decision, the town appointed a new chair and a number of new members to the Inland Wetland Agency, replacing the former chair and several other members. In 2018, Fusari reapplied with a slightly reduced plan of 23 houses. This time the agency unanimously approved Fusari’s application for a wetlands permit. Fusari also received approval from the Planning Commission for the project.
Lepkowski appealed both 2018 approvals. In February 2020, he lost his appeal of the Inland Wetland Agency decision.
But on May 13 of this year, Superior Court Judge Edward O’Hanlan upheld Lepkowski’s appeal of the Planning Commission decision, based on the town’s lack of compliance with its subdivision regulation requiring that the state Environmental Review Team, known as ERT, evaluate the project.
The agency was created in 1969 to “respond to the overwhelming number of residential subdivisions that were being approved without adequate consideration of the natural resources. At the time, assistance was given to towns who lacked adequate staff to perform technical reviews and environmental impacts,” according to the ERT website.
According to East Lyme’s subdivision regulations, an ERT evaluation is required for “subdivisions of 20 lots or more where more than 50% of the parcel(s) to be subdivided consists of environmentally sensitive resources such as wetlands, steep slopes (>25%), watercourses, flood hazard areas or ridge lines.”
The town said it reached out to the state ERT, but was told that the agency no longer performs development reviews.
Jeanne Davies, executive director of ERT and of Connecticut Resource Conservation and Development, known as CT RC&D, told CT Examiner that ERT lost its funding in 2012 and lost access to staff expertise at the Department of Energy and Environmental Protection in 2013.
She said the last time ERT performed a development review, also known as a “King’s Mark” review, was in 2013 for Southington. Other development reviews took place in Litchfield in 2002 and Chester in 2003.
When Davies was hired as executive director in 2016 to run ERT, an executive committee and a task force decided that the agency would only perform natural resource inventories for open space acquisition by towns or land trusts. The inventories would be completed by volunteers, who are mostly professionals working pro bono or were retired. She said ERT has completed natural resource inventories for Middletown, Wethersfield, Andover and Bloomfield, among others.
John Guszowski, president and CEO of CT RC&D, told CT Examiner that an additional factor that spurred ERT away from independent development reviews was the state’s shift to tighter timeframes for applications.
“The ERT is a team of volunteer experts. It was time consuming to assemble the team and get the reports [done]. They were not able to fit that service into the statutory timeframes,” he said.
Lepkowski, who hired his own environmental and engineering experts to make presentations during Fusari’s 2017 application, said he had reached out several times to the ERT in the last five years.
“So, throughout this process, we’ve been looking for an impartial third party, and the ERT is exactly what we’ve been waiting for. Someone would have had absolutely no dog in the fight on either side. It’s literally coming to assess the property for the environment’s sake and no other reason,” he said.
The town said it was “impossible” to fulfill the ERT requirement but Lepkowski’s appeal said the commission’s decision not to require the evaluation constituted an illegal violation of the commission’s subdivision regulations, which the judge upheld.
According to court documents, the Planning Commission may waive certain requirements by a three-quarters vote of all members, however, the ERT evaluation does not contain a provision for a waiver within the town’s regulations.
Gary Goeschel, Director of Planning for East Lyme, told CT Examiner, that a possible next step was to delete the ERT evaluation from the subdivision regulations.
But, he said, it was important to note that the commission’s approval is not predicated on a favorable review from the ERT. Even if the ERT were to give an unfavorable review, the commission could still approve the application, he said.
“There’s nothing in the regs that would prevent the application from having been approved or denied, based on whether or not the ERT was submitted,” he said.
Goeschel said the town would need to follow the process of holding a public hearing to delete ERT from the regulations, which would take time. He said he was also planning to review a number of regulations that could require revisions.
Goeschel said that if Fusari were to withdraw his application and reapply, the road and other areas of the project would now be under the jurisdiction of the town’s mandatory upland review, which was changed from 100 to 300 feet in 2021.
“The road access to the project would fall within regulated areas because of the 300-foot upland review. He would be required to go back to the Inland Wetland Agency for a conditional review,” Goeschel said.
On June 1, the town filed motions to reargue Judge O’Hanlon’s decision upholding Lepkowski’s appeal, and on June 9 Lepkowski filed a memorandum in opposition to reargument of the appeal.