OLD LYME — For six months, two town commissions have wrestled for control of three acres of town land where a kayak and canoe launch was in use a half century ago – and it appears that a compromise is nowhere in sight.
As of December, the town’s Harbor Management Commission plans to move ahead with a hydrographic survey for a state permit to build a dock that will open up public access from the property to the Black Hall River.
But in two separate meetings, an Open Space Commission member said that water access approval on the site could be stopped or delayed, commenting that one strategy was to petition the dock permit hearing.
“That could take years,” said Michael Aurelia, Open Space member, during a meeting of the 36-1 Buttonball Road Committee.
The committee was formed in July after it came to light that the state had deeded the land to the town 20 years ago, provided that the public be given recreational use of the river – a provision that was never exercised or enforced.
The committee includes members of the Harbor Management, Open Space and Inland Wetlands commissions, who were tasked with providing recommendations to the Board of Selectmen on the future use and management of the parcel.
But the committee meetings have been contentious.
For example, at the Dec. 20 meeting, Harbor Management and Buttonball committee member Michael Barnes spoke about the dock pre-application process required by the Department of Energy and Environmental Protection, or DEEP, followed by reviews from the Army Corps of Engineers and other agencies.
Aurelia, who is also a committee member, said that if Harbor Management didn’t interface with other commissions and learn about the impacts of the proposed activity, “it’s not going to proceed very quickly.”
Barnes replied, “That’s why we work with DEEP.”
Aurelia said that DEEP was “really an arbitrator” that will look at the statute. He reiterated that if Harbor Management did not work with other local commissions, “I predict the review process is going to take a lot longer given the history of what’s been going on.”
At the meeting, First Selectman Tim Griswold said DEEP could perform the environmental assessment of the property, and Barnes agreed.
But Aurelia disagreed because, he said, the DEEP lacked the capacity to do the environmental assessment and the other steps in the process.
“They don’t even have the staff to review applications in a timely manner, much less review and approve and do some sort of analysis. You’re not going to get a written report — I’ve never seen one,” said Aurelia.
Barnes responded that just because Aurelia had never seen an environmental assessment from DEEP, it did not mean one didn’t exist.
“Well, then get me one,” Aurelia said.
“I intend to,” replied Barnes.
Aurelia said he was sure the Open Space Commission will have a “very detailed analysis” of the proposed project, “with a more detailed evaluation of what’s going on on the marsh, all the vegetation, all the animals that are likely to be there, and all the potential impacts, even including interference with navigation.”
He said that the committee lacked an accurate drawing of the creek showing the cross section and dimensions of the dock and whether it will block upstream access.
“There are a whole series of questions that I could ask that could slow this down,” Aurelia said.
“If you want to slow this down, that’s one way to do it,” said Barnes.
“If we don’t work together, that’s what might happen,” Aurelia said.
Barnes said that sounded like a threat..
“It’s not a threat – I’m just telling you, more can happen than going off on a tangent,” Aurelia said.
Barnes responded that the DEEP is monitoring the project “closely for the use that they designated it for” and was expecting to see an application regarding the property.
“It ain’t gonna happen”
At the Open Space Commission meeting on Dec. 14, a member said that if water access were not included in the Buttonball parcel’s use, the property could be returned to the state through the DEEP.
Aurelia replied that unless the state wanted to enforce that, “it ain’t going to happen.”
Commission co-chair Evan Griswold said that the state doesn’t want to take the property back.
Aurelia said that the water access was a declaration, rather than an easement, and can be violated unless there is an entity holding it that is willing to defend it in court. Otherwise, “it’s worthless,” he said.
Similar to the Buttonball Committee meeting, Aurelia said that a method of stopping or delaying water access approval was to petition the DEEP hearing.
“The only thing we could do – to be careful and cautious and environmentally sensitive – would be to petition … any application to public hearing, so that there’s a discussion of it locally, even though it might happen in Hartford,” he said. “That would probably piss folks off but then we can present data.”
Aurelia said that at a DEEP hearing, there will be an arbitrator from DEEP “who is not partial.”
“Usually the DEEP is in cahoots with the applicant because they’ve helped design the structure to minimize, in their opinion, the impact on the tidal wetland,” he said. “So the DEEP staff has a commitment to support what they recommended because that’s maybe what the applicant designed – so they’re compromised, basically, they’re tied, and because they’re going to approve something, minimize whatever they propose, hopefully.”
He said that those who do not agree with DEEP’s recommendation can then make their case.
“That’s where you would present technical information,” he said. “Now, a lot of times the DEEP hearing officer just ignores it for legal reasons, because you can’t restrict access to deep water theoretically.”
Mean high water mark
At the Dec. 14 Buttonball committee meeting, chair Fred Behringer provided a draft recommendation proposing shared control between the Open Space and the Harbor Management commissions — with jurisdiction above the mean high water mark belonging to Open Space, and the area below the mean high water mark controlled by Harbor Management.
“That might be difficult but one way to ease that is to initially come up with some agreements between the two commissions about what the scope will be and iron out some of these issues so they don’t become thorns going down the road,” he said.
But Sloan Danenhower, member of Harbor Management and the Buttonball committee, said that Harbor Management could lose control of the property if water access is not pursued.
“If [the town] decides not to do a floating dock, our ability to manage it is lost because if Open Space controls above high water, well, there is nothing below high water because there is no dock – and then they would have complete control over it,” he said.
John Meesham, an alternate on the Inland Wetlands Commission and member of the Buttonball committee, questioned why Open Space wanted the parcel, which he said was small and functioned mainly as access to the water with parking and an area to load and unload.
“I don’t see a trail system in there. It’s 2.88 acres with a lot of it as the actual right-of-way and the majority of it is the coastal wetlands, so you’re not going to have a trail over that… so what’s Open Space’s vision?”
Evan Griswold, co-chair of Open Space, said that the purpose of open space properties was to provide public access to some natural areas, while others were areas where wildlife can thrive. Not all of the areas had public access, he said.
Amanda Blair, co-chair of Open Space, who lives adjacent to the parcel, told the committee that she thought the commissions could work together but it was important to protect the environment and to remember the rights of private property owners.
She said the water access restriction placed on the property 20 years ago had never been enforced, and she suggested that it be changed.
“Restrictions can be changed by working with the legislature and we can adapt that – there is not any indication of kayaking or a landing or anything else,” she said.
The property was deeded to the town in 2002 under the jurisdiction of the Conservation Commission’s Open Space committee, which became the Open Space Commission in 2010, according to meeting minutes from 2001.
“I think Open Space was originally awarded this property. I think we can work with Harbor Management at the high water mark because that’s what their plan says and that’s what the state of Connecticut says,” said Blair.
Barnes interjected that Blair’s statement “reiterates my concern that she is saying ‘Open Space’ and ‘we’ in the same sentence.”
Blair replied that she “went before the executive board” and by their decision there is no conflict of interest. “So the smoke and mirrors is not there. There is no conflict of interest, for the record.”
Behringer said that it was important to remember that continuing to argue would not lead to a compromise solution.
He thanked Barnes for bringing the status of the parcel to the town’s attention but said it was time to move forward and “start thinking a little bit better with each other.”
Behringer said that Open Space has signaled a willingness to work with Harbor Management.
“I have no illusions that there will be some friction along the way but if you keep fighting each other, it’s going to keep on festering.”
Meesham said that the argumentative exchanges during the meeting reflected the commissions’ conflicting visions of what the property should become and reinforced the idea that the property should not be divided.
Griswold said the issue was how to manage public access and that having a bench for viewing and a platform walkway were “no problem” but it was important – firstly – to evaluate whether the marsh can handle public access, including people walking on the marsh, not just the walkway.
Barnes said that DEEP would determine whether the environmental impacts outweighed public access or vice versa.
Behringer asked that all committee members come to the next meeting with bulleted proposals from each commission that could be compiled and submitted to the Board of Selectmen.
Editor’s note: In a previous version of this story, two quotes from John Meesham, an alternate on the Inland Wetlands Commission and member of the Buttonball committee, were misattributed to Jared Bombaci, an alternate on the Inland Wetlands Commission and member of the Buttonball committee. Bombaci was also described as a member of Inland Wetlands, but he is an alternate.