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Oct 1, 2009 Column Refuting Councilman Delucia's Column Critiquing Wetlands Law

Guest Column: Wetlands proposal is sound

Written by Dan Welsh
Thursday, 01 October 2009

If you read Peter DeLucia’s column in The Ledger last week, you might come away with serious misunderstandings about the town wetlands law and proposed revisions to it. I believe it is important to point out the deficiencies in that column, that we might proceed with discussions on a sound footing and pass the proposed administrative upgrades that will save homeowners time and money while continuing to protect out water supply and home values.

First off, we should note that the current iteration of the code has stood up to four years of exhaustive and aggressive (and expensive) challenges in court. While there has been a good deal of press about these suits, the day-to-day reality is that those tasked with applying the law — the Planning Board and the wetlands inspector — have found the law to be quite functional, and it has achieved its central purpose. While there is always room for tweaking, the Town Board member’s cry of “unfair” is at minimum an unfortunate rhetorical choice.

Mr. DeLucia makes much of the fines, but in fact the intent of the code is to achieve compliance and protect the water supply, not to punish. Larger fines may be assessed when the violation is deemed “willful.” There have been two such cases in the past few years. The average fine for all others during the same period is $194. He supports his case for reducing fine levels by comparing Lewisboro’s maximum fine with Bedford’s minimum. Such jarring logical misadventures cannot be a useful contribution to the dialog.

Mr. DeLucia contends that the drafters of the proposed modifications did damage to the existing code by removing the wetlands map, though he is fully aware that the town has no wetlands map, and never did. At the meeting where the Town Board reviewed the draft modifications, respected neighbor Dean Travalino helped reconstruct the history. In its earlier version, the code indeed called for reference to a town wetlands map, but such a map was never prepared. The folks who brought us the existing code, apparently recognizing this, removed the references, except they missed one appearance of the term — in the definitions. The code never actually applies the defined term, so it is misleading to say it has been removed and the drafters of the proposed modifications should not be accused of doing something they did not do, and could not have done.

Wetland maps are not the panacea that Mr. DeLucia’s column makes them out to be. In every case where they are made available, they are provided as macro guidelines only, and site-specific determinations are always made by a trained wetland biologist. Developing townwide wetlands maps would be an extremely expensive project, would need constant updating, and would not provide the definitive demarcation that he promises to readers.

Mr. DeLucia devotes much effort to advocating that only wetlands of some minimum size be subject to regulation. While it is not obvious to me that we can know what size wetlands we can write off without putting our water supply at risk, the more immediate problem is that the package of modifications prepared for us was intended to bring time and cost savings to homeowners quickly while deferring complex issues that would delay enactment or perhaps even threaten it altogether. Setting a size for wetlands is clearly one of those complex issues since it requires expert technical input and there is a good likelihood that opinions may diverge. Again, Mr. DeLucia is well aware of this background.

The use of the term “window dressing” to describe a set of sensible updates to the wetland code prepared by dedicated volunteers does not establish a good environment for working through this task. I hope we can move these useful changes through the legislative process quickly so that homeowners may enjoy the benefits.

... and here is Councilman Delucia's original column; does he really want to open this up again, encouraging frivolous suits that will hurt the town?:

Guest Column: Lewisboro needs a fair wetlands law

Written by Peter DeLucia
Thursday, 24 September 2009

I appreciate the hard work put in by the supervisor’s task force in drafting proposed amendments to the town’s current wetland and watercourse code. Their goals, to make interpretation, compliance, and administration easier and to reduce expenses for homeowners, are those that I have been strongly advocating since first being elected four years ago.

However, after a review of the proposed revisions, it is clear that the more critically needed changes have not been included, and some of the proposed changes might actually be counterproductive.

For example, the current revisions remove the requirement that the town maintain a wetlands map. The town has never had more mapping capabilities than it has today. Additionally, the County Planning Department maintains wetland maps. Getting rid of the map requirement may save the town some money, but it certainly will not save homeowners any expenses. As with the state law and neighboring towns, the map serves as fair notice to homeowners of the presence of wetlands.

Doing away with the requirement that the town maintain a wetlands map is like doing away with the requirement to post speed limit signs on our highways. This is a fairness issue. How does a driver know he or she is speeding without a speed limit sign? How does a homeowner know that he or she is near wetlands without a map?

Generally, wetlands that don’t appear on a map are small, new, and often difficult to define, and usually artificially created by road runoff and other outside causes. Is it fair to then assess a fine for an unintentional violation? Lack of adequate notice is the reason that the Department of Environmental Conservation does not fine first offenders for inadvertent violations on wetlands that are not mapped, though they can be made to pay the cost of remediation.

Despite the revisions, the fines remain excessive. Drunk driving in New York carries a fine of $500, yet a first time wetlands violator can be subject to multiple fines of up to $7,500 each. In Bedford, the fines start at $250. While our current Planning Board has been fair in the administration of the law, the ordinance must be written to work no matter who is enforcing it. I would like to see a sliding scale of violations — nominal if the wetlands are not mapped and increasing after the first offense.

In addition, I remain uncomfortable with having planners, often already involved in the applicant’s permit application, act as a “wetlands court.” This is unfair both to the members of the board who must sit in judgment of their neighbors and to the applicants who deserve a hearing by an independent body. It is also contrary to my experience in hearings and enforcement at the county level, where we use independent hearing examiners to adjudicate health code violations.

Another concern is that under state law the “activities of farmers and other landowners” are exempt from local wetlands laws. Yet the new proposal contains a definition for “agriculture activities,” which would end this exemption for backyard farmers and horse owners. By contradicting the state law, this could render our entire local law invalid.

Also, the current proposal retains the controversial “clearance form,” which requires the wetlands inspector to come out and look at every project no matter how minor. This costs the town money by duplicating the efforts of the building department, and is an unreasonable intrusion on homeowners’ privacy.

Finally, if we intend to pass a law that increases protection for homeowners, provides certainty, and saves unwarranted expense, there needs to be a defined minimum size wetland area where the buffer regulations don’t apply. The state only regulates wetlands 12 acres or larger. In Pound Ridge, a watershed area and the only other local town with a 150-foot buffer, wetlands of less than one-quarter acre are exempt. Our local stormwater ordinance exempts area disturbances of fewer than 5,000 feet. Otherwise, we are back to the same illogical situation where a homeowner living on one acre with a small, seasonally wet depression three feet in diameter would be subject to an 150-foot buffer extending completely around this tiny “wetland” and effectively prohibited from doing anything on his or her property without a visit from the wetlands inspector and most likely incurring fees and other consulting costs.

I share the belief that the sooner the code is amended the better. However, without careful consideration of the changes outlined above, acting in haste will, at best, be just “window dressing” and more likely result in a further setback for the rights of Lewisboro homeowners.

8/20/09 Letter to Editor Re TB Votes Down Smart Grid

Last Thursday, the Pound Ridge Town Board voted to participate in a grant application under one of the richest of the economic recovery program initiatives. They join 8 other Northern Westchester towns in this effort to obtain funds to enable their residents and the municipal government to invest and earn revenue in the new "green" economy on the Fed's nickel. If/when the grant is won, if a town deems the arrangements not in their interest, they can still opt out. After the program is launched, the town and residents are under no obligation to utilize the grant funds to purchase Smart-grid-enabled appliances or invest in other income-generating electrical control facilities. After purchasing Smart grid enabled items with federal support, there is no obligation to participate in the electric grid "calls”. And then finally, if they do offer to “shed load” on call, the risk that the commitment is not met is taken on by a third party "aggregator”. On the same evening that Pound Ridge became the 9th town to join in, Lewisboro voted against participation - for the second time. Lewisboro is the only town to bring this simple, risk-free resolution to a vote, and vote it down. My colleagues offered an agitated avalanche of reasons, mostly around the risk theme, why they would not join Supervisor Ed Brancati and myself in voting to make this program available to the town. I found these totally at odds with reality. Perhaps they will have more success explaining to the public.

7/30/09 Letter to Editor re Recycling Center

[Printed as Guest Column] I suspect that there will be a number of letters complaining about the shutting down of regular operations at the recycling center. To some extent, I don't blame anyone for wanting to vent on this one; it certainly sounds bad. Lewisboro's recycling rate ranked near the bottom of the pile in statistics recently released by the County, so on its face, this would seem to be the wrong move at the wrong time. I believe however that this austerity move, just one of many large and small made in an effort to close the budget gap, could actually serve as the proverbial “kick in the pants” to push Lewisboro to the next level in sustainable waste management. A couple of weeks ago, 20-30 people from towns around the county gathered in Somers to hear Lewisboro’s Neil Cutler give an overview of options and best practices for managing and reducing the amount of material we send to landfills. Discussion followed, and the group intends to work on common approaches such as shared facilities and negotiating with carters for enhanced pickup options. I personally think that the key to increasing recycling rates is to expand the types of material we can put out on the curb and we will need the carters’ help with this. My carter only takes plastics 1 and 2 yet in some area towns they are already accepting 1-6. Maybe there could be periodic pickup of fluorescent bulbs or e-waste. Certainly mixed paper represents a large volume of the material going into our regular garbage and this could be recovered as well. The Lewisboro recycling center has been a great asset, but it has been taking two categories of material only – scrap metal and co-mingled glass and plastics. The latter is now taken by all carters, so in actuality, the only unique service we offered was the scrap metal. We are planning on opening up on a quarterly basis for this. We don’t know how it will all shake out exactly, but I feel certain that we will find ways to make it easier for residents to do the right thing with their waste.

3/26/09 Ledger Letter re Library Mailing

The library’s “Building Project Update” mailing was a welcome addition to a dialog which should afford Lewisboro residents a better chance to inform themselves about the plan to move the Library to the Town Park. My 250 words permits a only limited response here. The mailing states that the 20 plus year-old master plan is a policy statement only, a set of guidelines. The implication, not fully expressed, is that the principles and findings therein are no longer applicable, or, somehow inappropriate in this situation. Preserving the hamlets is one of the key themes of the MP, and removing the library from Main St. South Salem is not consistent with that. The proponents of the move to the park may feel that the benefits they cite outweigh this negative impact, but it remains a negative impact by any reasonable standard, not at all diminished by the fact that the Master Plan is a plan, and not legislation.

A late nineties survey is declared to have defined the needs of the community. I hope the library will post the questions and response summaries on the library website to help us understand the basis for the project scope. These days, it is a rare project which is not obliged to submit itself to the realities of compromise. A series of discrete questions (e.g., “is the children’s area adequate?”) may yield an attractive wish list, but designing a project which optimally balances these with un-surveyed factors, budgets and current reality is another thing.

2/12/2009 Letter re Library Project Worksession

I want to thank my colleagues on the Town Board, the Library Board and other participants for a good exchange last week in our work session on the library project. The thing that really stuck out for me was that, as much as it has been portrayed as being the best solution for the project, there was a marked lack of enthusiasm from the great majority of participants for the plan to move to the Town Park. The majority of the Board expressed the sense that keeping the library in the hamlet was the better option, yet ultimately voted 4-1 in favor of authorizing our engineering consultant to proceed with examination of the latest proposed site for septic, water and other details. Perhaps, understandably, this reflects a desire to be sensitive to the hard work done over the last decade, but we should be basing our decision on the larger picture; this plan fails to fulfill one of the key elements of the town's Master Plan - the preservation and enhancement our hamlets.

I'll say it again: if the library is to go anywhere, the only place that makes sense is at the heart of Cross River, as part of a larger effort to make that area realize its potential as a livable, functional hamlet, and a Town Center that Lewisboro never had. But, since a suitable plot and that larger plan are nowhere in sight, the best option now is to stay put. Design the project around the funding that is available now, put a second story on the front of the building, maybe do without the “multipurpose room,” and go forward – now.

12/31/08 Letter to Editor Re Misleading

I don't for a moment think it was some conscious effort to create a ruckus where there wasn't, but anybody reading the "Narrowly Passes" headline and browsing the story would have to come to the conclusion that there were two diametrically opposed sides in the discussions. In reality, there was plenty of noise, but no disagreement on anything material. There will no doubt be opportunities to report on actual disagreement going forward. The Ledger deserved this poke.

Ledger Article was Misleading

Consciously or un, December 24th's “Town Budget Narrowly Passes” article was misleading, in that it left out any facts that would not support its narrow narrative. The headline and text seem to suggest that there is one faction fighting against rising costs while another treats these with indifference. For example, the article credits Mr. Delucia with a comment about moving to centralized purchasing, but if you check the minutes, you will find the first comment about this to have been made by Mr. Brancati. I am quoted once in the article, saying that I did “not want to hack away and risk hurting town programs”. Left out was the fact that I said we should continue to work on operation costs going forward into the new year, but that cutting more at this time without any additional facts would not be wise. Also left out, any reference to the substantial savings achieved by restructurings to our benefit packages initiated by the supervisor.

Both Mr Brancati and myself offered to continue with the line-item review if our colleagues wanted to do so, but our colleagues did not take us up on this. Lets face it, the two nay votes by my colleagues were political freebies – up or down, the budget would be unchanged. Voting no allowed them to lay claim to the populist fiscal position without any real downside. I do not begrudge them a bit of political posturing, but the Ledger should not be abetting this. Consciously or un.

and in response, this "Editor's note:

Although the article did not specifically mention Mr. Welsh when talking about reducing operation costs next year, it say that all of the board members agreed to review the town's organization next year to save money.

Noted, but this reference to "all the board members" does not alter the overall message in any significant way.