[CT Birds] Griswold Airport and the Constitution of the U.S. (Democracy in action)

[ORCHIDS]

Griswold Airport and the Constitution of the U.S. (Democracy in action)

I have read numerous posts on Griswold Airport and offer these  
observations.  We all graduated high school -learned our 3R's but were  
never instructed on how planning and zoning decisions are made and the  
relationship between those decisions and the constitution.   All of  
the digest readers should recall the recent case in New London where  
private land was taken for a 'public purpose'.  The constitution  
(democracy) only allows government to take land for a public purpose  
and must compensate the land owner the fair market value of the  
property.

The courts have established that land use regulation (planning and  
zoning, inland wetlands) that goes to 'far' and denies a land owner of  
all 'reasonable' uses of their land – have effectively taken private  
land for a public purpose and must compensate the land owner.  Courts  
in Connecticut have determined that a diminuation of land value up to  
90% of the fair market value does not necessarily caused a  
'regulatory' taking of land.

There is a movement across the country by private land owners to  
reduce the value that causes the courts to find a regulatory takings.   
The good news is that Connecticut has zoning laws and so your neighbor  
does not have the right to build a landfill in your backyard.   
However, if you adore that privately owned forest or grassland  
adjacent to your house (which by the way altered some natural habitat  
– perhaps you live in a home where the forest was cut and replaced by  
Kentucky bluegrass, pavement, etc.), then do not rely upon a town to  
protect it from development especially if a new development meets all  
regulatory requirements.

Towns, the state and federal government can only make a regulatory  
decision based upon existing regulatory laws.  If a proposal is  
consistent with all regulatory requirements, a town cannot deny a  
project merely because the residents oppose it.  The courts consider  
the applicable laws, not the number of public in a town that object to  
a proposal – that would be arbitrary and capricious and ripe for a  
takings claim.

The courts are more likely to support a denial where it can be  
demonstrated that if the proposed development were to be permitted, it  
would cause a nuisance – such as adversely affecting the health of the  
community for pollutants emitted, than if there were environmental harm.

Connecticut is a home rule state, it prefers to make decisions at the  
local level.  Even if towns and citizens were willing to relinquish  
control to the state, that does not change the constitution and  
eliminate issues with regards to a regulatory takings.

One digest reader questioned why anyone would propose a development  
proposal such as this given the current economy.  The current proposal  
represents a significant revision of a proposal submitted some 8 or so  
years ago, that was denied for it failed to meet all applicable laws.   
After significant revisions and several years later, the current  
proposal received municipal approval.  The project then needed to  
apply to the state for a permit for an advanced treatment system that  
would greatly reduce nitrogen enrichment (an approvable alternative is  
single family homes on septic systems (soil does not mitigate  
nitrogen).  Large scale developments often require several years to  
obtain all necessary permit approvals.

One reader wondered about the impacts to striped bass, bluefish and  
blue claw crabs.  These are all migratory species and frequent even  
our most development harbors.  I worry most about sea level rise  
predictions from climate change.  In recent years there have been  
rapid changes in marsh vegetation at Hammonassett that may be the  
first signs of changes (submergence) from rapid sea level rise.  The  
high marsh black grass has replaced Kentucky Bluegrass in the 'lawn's  
of Hammo.  The seaward edge of high marsh was seen to be dying as it  
is on Cape Cod.  It now appears that low marsh vegetation is rapidly  
advancing into the high marsh.  One of the significant roles that  
marshes play in estuary ecology is the production of the forage fish  
known as killifish.  Should the wetlands of Hammo drown and contract  
into the narrow bands of vegetation that exists more than 3000 years  
ago when sea level rise rates decreased to a mere 1 mm/yr, then there  
is likely to be less baitfish for foraging by stripers and bluefish.

Ron Rozsa, Ashford