FARMINGTON — Twice on the evening of Wednesday, Sept. 2, the Farmington Inland Wetlands Commission voted that a project in front of it was "not a significant activity." Once for a rebuilt observation deck at the edge of the East Farms School pond on Wolf Pit Road. Once for a 12-by-24-foot driveway on Garden Street, three houses from the Route 4 light.
That finding is the switch on the whole process. A significant-activity finding requires the applicant to file a second, heavier set of materials, sends the application to a second town body for review, and triggers a public hearing automatically. A not-significant finding sends it to a vote at the next meeting.
The phrase is not defined anywhere in the town's wetlands regulations.
The wetlands meeting adjourned at 7:27 p.m. The same room then convened as the Farmington Conservation Commission, which meets immediately after the wetlands meeting on its own agenda, and Chair Ned T. Statchen asked for a status update on the regulations before adjourning that meeting at 7:30. Bruce Cyr, the town's senior assistant town planner and its conservation and wetlands agent, said he was making final edits to a set of amendments. One of the two changes he named is that phrase.
"Sometimes it has significant activities, significant impact," Cyr said. "So I'm trying to, I'm putting those all into one. So it's one common word throughout the whole thing. So we don't get into any issues with that."
What the rulebook says
The Farmington Regulations for Inland Wetlands and Watercourses run 25 pages, carry the notation "Amended to April 27, 2018," and are the version the town links from the commission's own page. Section 2 defines 33 terms. Number 25 is "significant impact," which runs seven subparagraphs covering activities that may have a major effect: substantial turbidity or siltation, pollution of a watercourse, damage to areas of demonstrable scientific value, and so on.
"Significant activity" is not among the 33. It appears five times in the document, and every appearance is in an operative section, where it does work.
The closest thing to a definition sits in the application procedure at Section 6.D, and it defines the term using the other one: "A significant activity includes that which will have significant impact, and or an activity which may cause," followed by eight subparagraphs of its own that cover some of the same ground in different words. So there are two lists, one defined and one not, and the finding the commission announces out loud is the undefined one. It appears in ten of the eleven meeting transcripts the Mercury holds for this commission from this year, March through September, including the long May night the commission spent asking where the water goes.
Why the wording carries weight
Three things follow from the finding, and all three are in the regulations.
Section 6.D requires an applicant whose project is found significant to file the additional material listed at Section 6.E, which runs to site plans, alternatives analysis and more. Section 7 sends the application to a second body: "The Commission shall submit all applications involving significant activities to the Farmington Conservation Commission." Which town body reviews what, and which ones actually decide, is a distinction this paper has had to draw before. And Section 6.F requires a hearing:
"A public hearing is also required for all applications involving a significant activity or where the Commission determines that a public hearing would be in the public interest or where the Commission receives a petition requesting a hearing, signed by a minimum of twenty-five persons who are eighteen years of age or older and who reside in the municipality in which the regulated activity is proposed, filed not later than fourteen (14) days after the date of receipt of an application."
Read that backward and it is practical information for a resident. A significant-activity finding produces a hearing automatically. When the commission does not make one, a hearing is still available two other ways: the commission can call one on its own, or 25 residents can demand one within 14 days of the application being received.
Both Sept. 2 applications drew the not-significant finding. Neither carries an automatic hearing, and neither goes to the Conservation Commission. The commission is expected to vote on both at its next meeting, Wednesday, Sept. 16.
The reach of all this is wider than the word wetlands suggests. The Garden Street driveway is not in a wetland. It is roughly 80 feet from a storm outlet that drains to a swale behind the houses and from there to the Farmington River, and the regulations capture activity within 150 feet of a regulated feature. That is how a paved parking space for a tenant becomes an application, a staff condition and a vote. Residents do not always find that out in a convenient order, as the West Avon Road homeowner who dug a pond in what she believed was her own backyard learned in July.
The case that none of this matters much
Cyr's own account is that the fix is cosmetic. Asked by Statchen whether the town attorney needed to review the changes, he said no. "It's just minor," he said, and described the work as housekeeping.
There is a real argument behind that. The two lists point at the same kinds of harm, a commissioner reading either one arrives at roughly the same place, and nothing in this year's meeting transcripts shows an application turning on the difference between the phrasings, including the West Avon Road restoration the commission approved this summer. Collapsing them into a single term is the sort of tidying that makes a document easier to read without changing what it does.
What survives the argument is narrower. The commission is voting on a term the definitions section does not define, and once the amendments are adopted, the wording that replaces it is what the next commission, the next applicant and the next appeal will read. Section 6.D and definition 25 are the two places a lawyer would go. Which words end up there is not housekeeping, whatever the intent behind the edit.
The second change, and what is not on the record
The other amendment Cyr named is the Conservation Commission referral. He did not say what the change to it would be, and no draft has been made public.
A referral provision is already in the regulations. It is the Section 7 language above, and it is mandatory for significant activities. Whether the amendment broadens that, narrows it, or moves it is not something the record answers.
Everything known about the substance of these amendments comes from Cyr's description of them at two meetings. The Mercury has not seen a draft.
A thread the commission keeps pulling on
This is not new business. Statchen has asked about it at each of the last three meetings the commission held.
On July 8 he asked how the changes were coming, and Cyr said he was working on it and would get it done. On July 22, asked again, Cyr said he still had to get the regulations to the state for review. The commission then recessed and did not meet in August.
Six weeks later, on Sept. 2, sending them to the state was still the next step rather than a finished one. "Those are ongoing," Cyr said. He was making a couple of tweaks. He invited members to send him suggestions, particularly the ones who had been on the commission long enough to remember provisions that had caused problems in the past.
Statchen's answer: "Keep at it."
There is a wording problem in the room as well as in the document. Members keep asking about the bylaws, and Cyr keeps correcting them. The instrument being amended is the regulations.
What has to happen before anything changes
The path from a staff draft to an enforceable rule is set by the state's Inland Wetlands and Watercourses Act and by the town's own Section 13, and it runs on fixed clocks.
The state sees it first. Under Section 22a-42a of the Connecticut General Statutes, a copy of the notice and the proposed amendments "shall be provided to the commissioner" of the Department of Energy and Environmental Protection "at least thirty-five days before such hearing." Section 6.F of the town's regulations sets the same 35-day clock. Cyr described that step in nearly those terms, saying the state has to look at any changes to the regulations by law and that he did not envision any issues.
Then the public hearing. Section 13.A requires a legal advertisement in a newspaper of substantial circulation in Farmington, run twice, the first appearance not more than 25 days and not less than 15 days before the hearing and the last not less than two days before. The proposed text goes to the town clerk for public inspection at least 10 days ahead. Those are floors rather than a schedule. The commission can give more notice; the minimum is what the document guarantees.
After the hearing, the commission adopts by majority vote, and a copy of the adopted change goes to the state commissioner within 10 days.
One detail is worth holding onto, because the town and the state describe the state's role differently. The statute requires that the commissioner be provided a copy before the hearing and another after adoption. The town's own Section 13.B goes further, making the regulations effective upon filing with the Farmington town clerk "after approval thereof by the Commissioner of Energy and Environmental Protection." Cyr's account on Sept. 2 followed the town's version, describing a state review that comes back before a hearing is held.
Whatever the amendments say, they will not touch the two applications already on the table. Section 14.B of the regulations, which tracks Section 22a-42e of the state statutes, holds that an application in conformance with the rules on the date it was received does not have to comply with a change adopted afterward. The East Farms deck and the Garden Street driveway were both received and accepted on Sept. 2. They will be judged by the rules as they read now.
The projects this does reach are the ones nobody has filed yet.
No hearing date was given at the meeting. When one is set, the public's formal opportunity will be a single evening, announced in a legal advertisement, on a document that so far exists only as a staff draft nobody outside the planning office has read. That is the entire public process, and it is worth knowing what it is about before the notice runs.
This coverage is supported by Farmington Storage, 155 Scott Swamp Road, the only storage facility in Connecticut with Museum air. A regulation is a definition somebody wrote down so that it would still mean the same thing eight years later. Farmington Storage applies the identical principle to your grandmother's dining set, with better climate control and fewer subparagraphs. 860.777.4001 📦
Jack Beckett read all 25 pages of the 2018 wetlands regulations to find out whether one phrase was in them. It was not. Second coffee. ☕
The Farmington Mercury covers the town nobody else is covering: the three-minute meeting after the meeting, the amendment nobody has seen, the definition that was never written down. We publish slowly, deliberately, and without apology. Always last to breaking news, thorough about everything else. Find us at farmingtonmercury.com and tell your neighbors. #WeAreFarmington 📰