Oct 1, 2009

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

Guest Column: Wetlands proposal is sound

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

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.