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ENFIELD PLANNING AND ZONING COMMISSION
TRANSCRIPT OF PH#1414.02
LEETE-STEVENS
JUNE 23, 2005
PRESENT: Anthony DiPace, Chairman
Jeffrey Cooper
Charles Duren
Robert Egan
James Hickey, Jr.
Karen Krebs
Karen Weseliza
Kathleen Sarno, Alternate
ALSO PRESENT: Jose Giner, Director of Planning
Chairman DiPace: Before we get started, a couple items. Number one, please if anybody has their cell phones on, please turn them off. Secondly, in order to move things along more effectively tonight, I have asked that anyone wishing to speak please sign up ahead of time. If you have not already done so, the sign up sheets are available at the desk located in front of the recording secretary. I’ll be calling speakers from the sign up sheets first and then opening up to the general public. I also ask that speakers limit their testimony to items which have not already been covered previously. Please keep in mind that the testimony and the record of the previous hearings are still part of this record and that the Commission members have been provided with copies of transcripts from those hearings. If at all possible, I also ask that you try to keep your remarks to under five minutes so that all those wishing to speak will have an opportunity to do so within the time that we have allotted for this hearing. I would also appreciate if you would not repeat any points already made but instead indicate your support for particular points of testimony. If you have submitted written comments, there is no need to repeat them and read them out loud. Those are just as much a part of the record as the verbal testimony that will be heard tonight and I will give equal consideration in our deliberations.
Please also keep in mind that this is a formal hearing and that applause or other comments from the audience are not appropriate. The rules of the hearing require no direct debate between audience members and questions or comments must be addressed through the Chairman. Thank you for your anticipated cooperation in making the process as efficient and painless as possible.
Will the Secretary please read the legal notice and take the roll.
Commissioner Duren: Public Notice, Enfield Planning and Zoning Commission. At the direction of and on remand from the Appellate Court of the State of Connecticut, Urbanowicz et al vs. Enfield Planning and Zoning Commission et al, 87-CT APP2772005. The Enfield Planning and Zoning Commission will hold a new public hearing on Thursday, June 23, 2005 beginning at 7:30 p.m. in the Town Hall Council Chambers, 820 Enfield Street, Enfield, Connecticut, concerning the following application:
Public Hearing #1414.02, Special Use Permit to locate, maintain, conduct and operate a crematory as an accessory use under Section 9-1.9 of the Enfield Zoning Regulations to Leete-Stevens Enfield Chapels, 61 South Road, Map 73, Lot 88 and a 55’ x 442’ portion of Lot 89, R-33 Zone and location approval pursuance to Connecticut General Statutes Section 19a-320. Leete-Stevens, Inc., applicant/owner. This application shall be considered under the zoning regulations in effect at the original time of filing.
Applications, plans with a copy of the zoning regulations in effect at the original time of filing are available for review in the Planning Department, 820 Enfield Street, dated this 9th day of June, 2005, Planning and Zoning Commission, Anthony DiPace, Chairman, Charles A. Duren, Secretary.
Published in the Journal Inquirer June 9, 2005 and June 16, 2005.
(Called roll)
Chairman DiPace: I’m going to start first with Mr. Willis.
Attorney Matthew Willis: For the record, I’m Attorney Matthew Willis and I’m representing the Commission this evening. I wanted to give a very brief background on this case and why we’re here. The Appellate Court rendered a decision that there had been a defective notice and procedural problem and that the application had to be heard again before this Commission. That’s why we’re here. There are two approvals that are being sought by the application. One is under 19a-320. That’s a state statute regarding crematoriums. It’s a location approval. The other is under the zoning regulations of the Commission themselves. I think the most important thing to realize is that the role of the Commission is to listen and to hear what all the speakers have to say and to consider it. That’s what their role is when they rendered their decision.
Now, there’s also been an intervention that has been filed. What that intervention is going to mean to the Commission is that at some point they’re going to have some decisions to make regarding the intervention and what it means. But for the time being we have to listen to all the parties. Any person, if you are going to speak, please state your name and your address for the record because a permanent record is kept of this. That’s all, Mr. Chairman.
Chairman DiPace: I’ll turn it over to the applicant.
Attorney Thomas Fahey: Thank you, Mr. Chairman, and members of the Commission. For the record, I’m Attorney Thomas Fahey of Windsor Locks, Connecticut and I represent Leete-Stevens, Inc., the applicant this evening. Sitting here is Mr. Stevens, the principal of Leete-Stevens, Inc. The other members of our team who will provide brief testimony tonight – we will introduce them as their testimony is given.
The Stevens’ family constructed the Leete-Stevens Funeral Home in a Business Local zone at 61 South Road, Enfield, Connecticut in 1977. Subsequently, the Town rezoned this property from a Business Local zone to a Residential zone – R-33. In 1985, the Commission amended its regulations to permit funeral homes by special permit in R-33 zones. Connecticut General Statutes 19a-320 governs the operation of crematories. Pursuant to 19a-320, crematories may be operated on a plot of land approved as to location by the zoning commission. On April 22, 1992, Leete-Stevens obtained a clean air permit from the State of Connecticut Department of Environmental Protection for the operation of a crematory at 61 South Road. Today DEP no longer requires these permits and we will provide some expert testimony on that in a little while.
On May 13, 1998, Leete-Stevens applied to this Commission for a special permit to operate a crematory at 61 South Road. The initial plans provided for the location of the crematory was in a room in the existing Leete-Stevens Funeral Home. The Commission convened a public hearing on this application on June 4, 1998 and continued this hearing with sessions on June 18, 1998 and July 2, 1998. At the June 4, 1998 session of the public hearing, the applicant noted that its application was being presented under Section 19a-320 of the Connecticut General Statutes. At the June 4, 1998 session, the applicant presented the following evidence: that Section 16-2.9 of the Enfield Zoning Regulations is inapplicable to the applicant in that the primary proposed activity is not the incineration of hazardous materials. Richard Stevens, a licensed funeral director for over thirty years, noted a considerable increase in the demand for crematory services and at that point, seventeen percent of the total services were cremations. Through Ron Salvatore, its expert who had ten years experience in the industry and was a certified crematory operator/trainer in the states of Florida, Louisiana, Oregon and South Carolina, and was personally involved with hundreds of installations including units in Connecticut in Waterbury, Stanford and Canton, testified that most communities treat the installation of a crematory as an accessory use to a funeral home; that the equipment proposed for the Leete-Stevens site was approved and evaluated by the Connecticut DEP and easily complied with relevant state standards; that the crematory operates without any visible emissions of smoke or odor and that said emissions are significantly less than that which would be produced from a wood stove or fireplace; that the State of Connecticut allows approximately .08 grains of particulate matter in a cubic foot of air which is typically unburned soot or dust from the containers and that the equipment for the proposed crematory operates at approximately .02 or approximately one-quarter of what the allowable standard is; that while the allowable standard for the crematory is equivalent to .08 of a grain in a cubic foot of air in a typical day, a fast food restaurant would emit a couple of pounds of particulate matter in their normal operating period; that the crematory is equipped with safety systems to provide immediate shut-down during power outages; that the State requires that the crematory maintain 1800 degrees farenheit throughout the cremation process; that the AIDS virus is completely destroyed at approximately 125 degrees farenheit; that the crematory contains a built-in emissions system which automatically takes corrective action by adjusting the levels of air and gas to each burner allowing it to operate at optimum temperatures; that the crematory does not produce steam because the level of water contained in the exhaust gas is very low; that the crematory does not discharge any type of film; that the State prohibits emissions in excess of number two on their rindolen scale which means that the level of opacity of smoke at that level is forty percent and that for the crematory, it is zero percent; that inspections and preventive maintenance will be performed on the equipment; that neither the Connecticut DEP or the Federal EPA regulates volatile organic compound emissions known as VOC’s from crematories because they exist in such miniscule amounts; that neither the Connecticut DEP or the Federal EPA regulates mercury emissions from a crematory from fillings because the amounts are so low; that nationally approximately seventy percent of all new crematory installations over the last ten years are in funeral homes, some as close as twenty-five feet to a residential dwelling; that the proposed stack height from grade of sixteen feet will insure the proper dispersion of exhaust gases; that the applicant will receive comprehensive training for every single operator even though such training is not yet required by the State of Connecticut for operator certification.
At the June 18 session of the public hearing, the applicant presented the following evidence: Engineer Jim Dutton of Vengituck in response to concerns raised by neighbors noted that an alternate plan was prepared locating the crematory in a freestanding building to the rear of the property approximately 300’ south of South Road. He also reviewed the technical aspects of the site plan confirming that no action was required from the Wetlands Commission because the proposed activity was outside the wetlands and wetlands buffer. He noted that grading was minor and the building was designed to go along the steep escarpment to the rear, that no fill was required, that the slopes were minor and gentle and that all drainage would flow naturally to an existing catch basin.
Jim Triba, the design architect, indicated that the proposed brick building was being designed to provide a chapel look to be compatible with the existing funeral home building. The applicant’s attorney indicated that the alternative plan required a lot line revision with other land owned by the applicant to the rear which would not require subdivision approval due to the contiguity of ownership and that the revised lots would both be conforming.
At the July 2, 1998 session, Jim Dutton, the applicant’s engineer, noted that the crematory would be located so that you could only see it from one location on South Road and that other adjustments were made to eliminate tree cutting and slope impacts. The applicant’s expert, Ron Salvatore, noted that no state health departments treat human bodies as hazardous wastes, that the DEP has no setback requirements for crematories, that typical wood stoves emit approximately ten to fifteen times greater quantities of emission than do crematories and that the crematory did not produce fry ash and its combustion efficiency is approximately 99.997.
During the July 2, 1998 session, the Commission also heard testimony regarding the concept of accessory use. Under Connecticut law, an accessory use is a use that is customary and incidental to a permitted use. It is dependent on or pertaining to the primary use. Whether a particular use qualifies as an accessory use is ordinarily a question of fact for the zoning authority to be determined by it with a liberal discretion. The Town of Enfield defines accessory use or building as a subordinate use or building customarily incident to and located on the same lot with the main use or building. Pursuant to Section 9-1.8 and Section 16-2.4 of the Enfield Zoning Regulations, the Stevens Funeral Home is a permitted principal use of land and it is located in an R-33 zone. Since Leete-Stevens Funeral Home was the permitted principal use of its residentially zoned property, the issue before the Commission is whether the proposed crematory is an accessory use, customary with and subordinate to a funeral home and located on the same lot as the funeral home.
Since it has been accepted that Leete-Stevens’ use of the property is that of a funeral home, this main principal and dominant use determines its character for zoning purposes. The criteria that determines whether a use is accessory must, of necessity, be shaped by the primary use to which it is incidental, as indicated, the funeral home use. What is a reasonable accessory use for a private dwelling is therefore not a helpful precedent for determining what is customary with and subordinate to a funeral home. Based on this principle, the Commission heard extensive testimony supporting the applicant’s contention that the proposed crematory was customary and incidental to the funeral home. Funeral homes provide a place where the body of a deceased person can be kept or displayed pending the funeral arrangements and burial. They furnish a place where funeral services may be conducted. Some prepare the body for burial and some operate a crematory. A crematory has been held to be a proper accessory or incidental use to a valid nonconforming cemetery and it is not essential that an accessory use be one utilized by a majority or even a substantial percentage of owners of the principal use under the customary incident language of the ordinance.
A possible reason for the lack of a specific Connecticut precedent may well be that until recently cremation was not generally accepted, favored or utilized. This may also explain why the Enfield regulations were silent on the subject.
The Superior Court in Connecticut has considered an analogous issue. In the 300 PRW case, the Superior Court ruled that a private cemetery was a permissible accessory use to a principal single family residential use. It must be emphasized that the phrase used in the Enfield regulations is “customarily incident to the main use of the building” and not that the use must be customary. As Professor Tondreau, a noted Connecticut land use law professor, has noted, if the rule intended that only customary uses could come under the doctrine, than many or most people in the area would have to be doing the same thing before any one of them could. As a New Jersey court remarked, we would still have horse stables instead of garages in our residential neighborhoods. Someone has to be first if a use is ever to become customary.
As in special permit criteria, while it is true that under Section 16-2.9, all industrial and/or commercial uses which have as a primary activity the handling, use, treatment, processing, storage, incineration, or disposal of hazardous materials are required to obtain general permits. The record clearly establishes that the applicant was not engaged in these activities. Applicant’s experts testified that the human bodies are not considered hazardous waste by federal and local law. By definition, for Section 16-2.9 to be applicable, the primary activity of the business must be the use of hazardous materials. To the extent that any hazardous materials exist in the cremation process, they exist as a minimal by product. Since the crematory is not regulated by Section 16-2.9, the special requirements of Section 16-4.1.14 are also inapplicable. The various studies and aquifer mapping provided for therein are not required of the applicant. The Commission can properly determine which sections of a regulation apply to a specific application.
As a follow-up to that, I would like to submit some additional exhibits which the Commission can look through and I will also give you a copy of those remarks.
I’m going to submit a folder which contains what I term the legislative history of the section of the Enfield regulations which, specifically 16.4.1.14, and this legislative history I think some of you will remember this. I think Commissioner Duren – you were on the Board at the time. Back in 1980 and 1981 the Browning Ferris Industries had a proposal for a hazardous waste facility on 600 acres straddling the Enfield/East Windsor line. And the Enfield Town Council and the Enfield Planning and Zoning Commission went into action to pass a series of ordinances and regulations geared towards essentially stopping that from happening. What I have here are summaries of the Planning and Zoning Minutes and public hearings from June 4, 1981 in which you will see there was an enactment of the very section that we’re discussing here this evening, the one that we claim was never intended and does not cover our application because we’re not involved in the hazardous waste industry. We also have all of the Council minutes discussing the topic. There are summaries that were prepared by my office and the actual minutes themselves from the Town Clerk’s Office. There is also a summary of newspaper articles that covered the story for the year. I’m not going to say much more than that other than to say that it’s clear from this that the type of activity that that section was intended to regulate is not what you have before you this evening with respect to our application for a special permit for an accessory use to a funeral home as well as our location approval under 19a-320.
Dick, could you just hand that in. Unfortunately, I only have – because of the length of that – I just have one exhibit.
Chairman DiPace: You can give it to Jose so that he can stamp it as received.
Attorney Fahey: I’m also going to submit the remarks that I made. I’m also going to submit for purposes of illustrating compatibility photos of the site at 61 South Road. They are also displayed on the case there.
At this time, as a follow-up to the applicability of the special permit sections that deal with hazardous wastes, I’m going to call on representatives from GZA Environmental who are going to provide some succinct testimony and I would start with Tom Stark. Mr. Stark is a Vice President and principal with GZA. He’s got a bachelors and masters from UCONN in natural resources and environmental sciences. He spent – in the early to mid eighties he was with the Department of Environmental Protection, State of Connecticut, in the Solid Waste Bureau and involved with some refra activities. Mr. Stark, if you would.
Mr. Tom Stark: Good evening. Tom Stark from Willington, Connecticut. I’ll read a letter that I prepared in response to Attorney Fahey’s questions. “Dear Attorney Fahey: Recently you inquired if the operation of a crematorium could be subject to the federal Environmental Protection Agencies or the Connecticut Department of Environmental Protection’s regulations as a solid waste or a hazardous waste facility. The answer is clearly no on both questions as described below. EPA regulations and the Connecticut State counterparts qualitatively define solid waste as discarded materials which are abandoned or recycled. Clearly a human corpse is neither abandoned nor recycled. This concept is given additional clarity in the definitions of biomedical wastes which include body parts and animal carcasses but not human corpses. Connecticut Statutes under the public health code provide further clarification specifying that a human corpse only ceases to be a corpse once cremated or buried. Concerning hazardous wastes under both federal and state statutes and regulations, hazardous wastes are a sub cell of solid wastes. As such, if an item is not a solid waste, it cannot be a hazardous waste. As described above, human corpses are not solid wastes.
In conclusion, neither a human corpse nor its cremated remains are inherently waste like as defined in the federal and state statutes and regulations and, therefore, a crematorium cannot be considered either a solid waste or hazardous waste facility.
Attorney Fahey: And, also, you took a look at Section 16-2.9 and 16-4.14 of the Enfield regulations which apply to the business whose primary activity is the use and disposition of hazardous materials. In your opinion, would that apply to this application?
Mr. Stark: I was with the department when these regulations and these concepts were adopted and debated. The concept here was clearly for a facility that was managing quantities of liquids and solid hazardous waste for treatment or disposal or recycling through either on that property or on another property. Large portions of those regulations deal with ground water impacts and that type of issue which is not the issues that are confronted at a crematorium even if a corpse was considered a hazardous waste or a solid waste.
Attorney Fahey: Thank you, Tom. At this time, I’m going to submit a copy of Tom’s remarks along with a copy of his resume. While he is doing that, I will call on John Petrick. John is a Senior Project Manager with GZA. He has a bachelors in civil engineering from UCONN and amasters in environmental engineering from the University of New Haven. He is in the process of obtaining an additional masters in industrial hygiene. He spent five years with the DEP Air Bureau, the Connecticut Department of Environmental Protection Air Bureau, as an air pollution control engineer involved in the permit process. He processed approximately 285 applications while there including at least three crematories and a medical waste incinerary. He has prepared a report which he is going to give to you now.
John Petrick: Good evening, Commission. What I would like to do is read from a memo that covers several important air issues.
Chairman DiPace: Would you please restate your name.
John Petrick: I’m sorry. John Petrick, Project Manager, GZA Geo-environmental from Glastonbury, Connecticut.
Chairman DiPace: Thank you.
John Petrick: What I would like to do is read from a memo that I wrote concerning several important air issues related to the crematory. The first issue I would like to talk about is the Connecticut air toxic regulations. The Connecticut DEP regulates approximately 860 air toxics. For most of these air toxics, the DEP has determined acceptable fence line concentrations. The fence line concentrations are then put into a formula provided by the DEP which assumes an eight-hour daily exposure duration to calculate the maximum amount of emission rate allowed by the regulations. This value is then compared to the actual or calculated emission rate in a piece of equipment under consideration. A source is in compliance with Connecticut’s air toxic regulations if the actual or calculated emission rate is less than the maximum allowable emission rate.
A compliance assessment for Leete-Stevens crematory was completed using then during emission rate data and EPA emission factors. Based on the data available, Leete-Stevens, Inc. would be in compliance with Connecticut’s air toxic regulations even if the crematorium was operating eight hours per day. There is an attached table on my memo here which details those calculations.
The second issue I wanted to discuss was regulatory change to the State of Connecticut air permit requirements. When Leete-Stevens applied for a permit, all crematories were automatically required to obtain an air permit as incinerators pursuant to 22a-174-3f of the Connecticut Air Regulations. In March, 2002, the DEP revised their regulations and removed that particular section from the regulations. Now a need for an air permit is based solely on potential emissions from the equipment being installed. Based on the data contained on Leete-Stevens existing air permit, the facility would not need a permit based on today’s regulations. In fact, Leete-Stevens could ask the DEP to revoke its air permit and could operate legally without it.
The last issue I wanted to cover was a comparison of the permitted emissions from Leete-Stevens crematory to that of a residential fireplace. To obtain perspective relative to the magnitude of emissions from Leete-Stevens crematory, GZA compared the emissions of criteria pollutants from this crematorium to those of a residential fireplace processing the equivalent amount of wood per hour. As shown in table two of this attached memo, the emissions from the residential fireplace are consistent with or up to several layers of magnitude greater than the Leete-Stevens permitted emission limits.
Attorney Fahey: Thank you, John. And, for the record, we’re going to submit copies of your report. We will give you one for the record and we will catch up with the others which are in one of these piles here.
The next exhibits I would like to introduce are noise studies. Subsequent to the opening of the cremator in August of 1998, the Town Council initiated the adoption of a noise ordinance at the behest of those that were opposed to the crematory and that the Council commissioned Brooks Acoustics Corporation to conduct a noise study. That was done and concluded in November of 1998. And I’m not going to read the whole report. I’m going to simply read from the conclusion which says “noise level emissions at the Leete-Stevens Enfield Chapel Crematory and sources of emitted noise are identified. Noise levels were also measured at three nearby residences. Based on the measured noise data obtained during the survey, it was determined that the noise attributable to the crematory was always below forty-five decibels at the nearby residences. Also, it was determined that prominent, discreet tones were not present in the noise emitted by the crematory. Therefore, it is the opinion of BAC (that’s the name of the company that did the study) that the crematory is in compliance with state noise regulations.”
Now, that was the one that was commissioned by the Town. There are copies here. I would also submit at the same time – once we became aware that the Town was doing this, Dick Stevens, the principal of Leete-Stevens, commissioned his own noise study from Close, Jenson and Whitter. They used the latest and most sensitive state-of-the-art machinery that was available at the time for testing and, basically, confirmed that the results that were submitted by the Town’s tester were accurate and found that there were no violations of the residential criteria for decibel emissions.
At this time, I would like to call Holly Teid. Holly is with the Chief Medical Examiner’s Office. She’s a graduate of Kenyon College with a degree in anthropology and a master’s from the University of New Haven in forensic science. Holly, I’d like you to just briefly describe what your job entails and describe your familiarity with the Leete-Stevens crematory.
Ms. Holly Teid: Good evening. My name is Holly Teid, Investigator, Office of Chief Medical Examiner, Farmington, Connecticut. In my job as an investigator, part of our duties are to clear people for cremation purposes. Anybody who is cremated in the State of Connecticut has to be reported to our office and what we do then is we make an appointment with the funeral home. I would go out. I do most of Leete-Stevens cremations. I go to the funeral home. I do an examination of the body just to make sure that there is no trauma evident on the body. We also do a small investigation into the death as well to make sure there is no foul play or trauma involved and that the body is okay to cremate because cremation destroys the body and all evidence that would be on that body as well. With my job, when I go to Leete-Stevens, I do go into the crematory. I also do work in the funeral home as well. I have been in the crematory when it has been – when the crematory has been running. I have never had any uncomfortable situations there – nothing that doesn’t smell good. I’ve never heard anything that is out of the ordinary. In my opinion, they run a very clean, well kept funeral home.
Attorney Fahey: Holly, could you just be a little bit more specific with respect to odor.
Ms. Holly Teid: As far as odor, I have never smelled anything as far as the burning of anything while I’ve been there.
Attorney Fahey: Now, Holly, you also indicated that you write reports at the crematory. Do you write those reports in the funeral home section building or in the crematory building.
Ms. Holly Teid: What the paperwork entails is I get a copy of the death certificate to review and I fill out a cremation certificate. I normally do that in the office in the funeral home. The part of my job that takes me into the crematory would be the actual examination of the body itself.
Attorney Fahey: Now you indicated that you’ve been there – even though your job requires you to be there before cremations, you have been there at times when the cremations have been going on and you’ve also been there when cremations have been going on in the crematory when you’ve been doing paperwork in the funeral home. Could you hear the crematory then – running?
Ms. Holly Teid: No, I could not.
Attorney Fahey: Thank you. One last thing – are you here this evening because I subpoenaed you?
Ms. Holly Teid: Yes, I am.
Attorney Fahey: Thank you.
Attorney Fahey: I would like to call Bob Pfeifer. Many of you probably know Bob Pfeifer. He’s one of the most experienced commercial real estate appraisers in the area. He’s with Appraisal Resources of Connecticut. He’s been appraising commercially for over twenty years. He’s qualified. He’s got an MAI designation and is qualified to testify in courts of this state and in the United States Federal Bankruptcy Court. He’s also lectures in real estate licensing courses. At my request, he’s done some work with respect to property evaluations and he’s going to give his report this evening.
Robert A. Pfeifer, Jr.: Good evening. My name is Robert A. Pfeifer, Jr. I am a Vice President with Appraisal Resources of Connecticut. Our office is located at 104 Main Street in Manchester, Connecticut. I was engaged by Attorney Thomas Fahey of the law firm of Fahey, Landolina and Associates to determine any impact on the Leete-Stevens Funeral Home crematory and, more specifically, the operation of the crematory on residential real estate values in the general vicinity of the funeral home. The funeral home has been in operation for decades while the crematory has been in operation for nearly eight years now. It should be noted that I personally have appraised the subject facility on multiple occasions. In addition, I have also appraised other funeral homes throughout the State of Connecticut both with and without operating crematories. In an effort to determine the evaluation impact of the operating crematory, if any, on nearby residential dwellings, a survey of recently sold properties in the general vicinity of the funeral home was conducted. Details were compared to transactions of similar residential dwellings located outside of the immediate area of the subject funeral home within competing neighborhoods. This is considered to provide the most meaningful insight as to the potential valuation impact the operated crematory has on the surrounding residential dwellings.
As part of my analysis, I researched 134 single-family dwelling sales which sold over the past year within the Town of Enfield. My findings indicated that of the 134 dwellings cited within this report, fourteen were located within close proximity to the funeral home and the operating crematory. A review of these fourteen sales when compared to the remaining 120 sales were reviewed and analyzed and did not exhibit any negative impact on property values resulting from the operation of the crematory. Included in this package is a photocopy of sales data analyzed with the sales being highlighted in close proximity to the funeral home. As a result of this analysis, and in my opinion as a real estate appraiser/counselor over the past twenty-three years, it is my opinion that the Leete-Stevens Funeral Home and Crematory, more specifically the operation of the crematory, does not cause any diminution in value or decrease in value of the properties – residential dwellings – in the immediate area surrounding the facility. Furthermore, it is interesting to note if you look at the Enfield Assessor’s records, there is no reduction applied in the assessment of dwellings that are located in close proximity to the funeral home which would tend to indicate furthermore that there is no negative impact from the resulting operation of the crematory.
I appreciate your time. Thank you.
Attorney Fahey: Thank you, Bob. Next I’m going to submit some photos of the Swan Funeral Home which is located on Main Street in Old Saybrook. There’s a series – five or six photos – showing the funeral home from a couple of directions, the Riverview Crematory which they operate which is directly behind the funeral home and very similar to the relationship that Dick’s crematory which is located in a building behind his crematory is. What’s unique about this situation is that the Swan Funeral Home and its crematory is directly across the street from Old Saybrook High School and there’s a picture of the high school and there’s a picture of two residences. There’s a street that intersects Main Street adjacent to the school that is less than 500’ from the funeral home and crematory in which there has been recently erected four or five new homes and directly behind the crematory, less than 200’, is another existing relatively new home. That’s just offered to show not only compatibility but, obviously, I don’t think Old Saybrook can be too concerned about potential harmful effects from crematory emissions if they have their high school directly across the street.
Next I’m going to – I’ve got a packet of material – petitions and various letters and what not and I’m not going to read all of them. I’m just going to give you a sampling of them because I think it’s important. This is from Joan Smith dated June 20, 2005. She lives at 15 Wilstar Circle in Enfield. She says” “As I will be away during the week of June 20 and will be unable to attend your public hearing on the twenty-third, I’m writing to express my support of the existing crematory at Leete-Stevens Funeral Home. I am and have been for the last forty-five years a resident of Wilstar Circle which is less than one-half a mile from the funeral home and crematory. I have never heard any sounds or smelled any odors emanating from the crematory. I have attended wakes at the funeral home and the crematory has been operating and I have not heard any sounds or smelled any odors. When I saw signs urging residents/citizens to oppose residential incineration, I was appalled. When one hears the word incineration, it brings to mind the burning of trash. I don’t think this is an appropriate connotation for the cremation of a loved one or a person who has suffered a loss. Leete-Stevens’ owners have been wonderful neighbors. Their property is well maintained and they are providing a service to this community which is much needed. I hope that the Planning and Zoning Commission will put an end to this nonsense and vote to allow Leete-Stevens to continue to operate this accessory use to their funeral home. They and the taxpayers of the Town of Enfield have been subjected to considerable expense to appease the demands of a few disgruntled citizens.
Next is a letter from Beverly Nuccio, 1412 Enfield Street. “Dear Planning and Zoning Commission: This letter is in favor of the Leete-Stevens crematory on South Road. I recently needed to use the services of Mr. Richard Stevens and his crematory. At the time of grief, it was heartwarming to know that the remains of my father would be taken care of by a funeral home that I respected and one which had a crematory on its premises. It is difficult enough losing a loved one but knowing that I could have all arrangements made and taken care of at the local Enfield Leete-Stevens crematory somehow gave our family comfort. It would have created much emotional unrest among family members had my father’s body been sent off somewhere to be cremated. Mr. Stevens and his staff are very kind and compassionate. They are professional and they provide a service which is needed in the community. Many people look to cremation for their loved ones and they should not have to look out of town or in an industrial area. The building on South Road is set back on the property that’s well kept and serene. It must remain open for the convenience and comfort of the community. My family and I stand behind the crematory and feel it should remain open at its present location. Sincerely, Beverly Nuccio.”
A letter from Daniel Hinkley: “My name is Dan Hinkley. I own property at 57 South Road. I support the operation of a crematory at 61 South Road. My property abuts the west side of the funeral home property. The funeral home and crematory have been compatible with the neighborhood. I favor the operation of a crematory at 61 South Road.”
A letter from Frank Newport: “My name is Frank Newport. I reside at 75 South Road. My property abuts the east side of the property owned by Leete-Stevens. I have lived at 75 South Road for many years, long before the funeral home and crematory were built. Over the past twenty-five years, Leete-Stevens Enfield Chapels has been a good neighbor of mine. I fully support the plans presented by Leete-Stevens Enfield Chapels for the operation of a crematory at their location. Since the construction of the crematory in 1998, I have not had any complaints with their operation of a crematory. I find the crematory to be in harmony with the area. I’ll not be available to attend the meeting and I wish the letter to be read and entered into the record of this meeting.”
There were maybe a few other letters but there’s a lengthy petition of 300 plus signatures in there which we will submit for the record.
The crematory now exists on one lot. The lot line adjustment that was referred to at the original hearing was, in fact, made and has been filed in the Land Records. A copy of the map was given to Jose. Did you make that part of the record, Jose – the lot line adjustment?
Mr. Giner: I believe so. Hold on. Yes, it was received today.
Attorney Fahey: I have two other points and then I will turn this over. The opponents have submitted a petition to intervene which requires this Commission, as I’m sure your attorney has told you, to make a determination whether the petition is appropriate and contains sufficient factual allegations and if it does, then the second determination is whether or not there’s any unreasonable impact on the environment. I submit to you that – I question whether or not there are sufficient allegations in that petition. It refers to various things such as wetlands which both at the original hearing and today, the Wetlands agents have indicated that there are no wetlands issues here and no need for permits. With respect to issues of hazardous wastes and environmental impact, I believe that our experts and the history of the very regulation that they are seeking to require us to proceed under clearly show that there are no impacts and that we’re not controlled by that regulation.
You will hear, I’m sure, about a certain footnote in the Supreme Court Case. The Supreme Court case essentially found the one issue that it went up on that caused us to come back here is the fact of notice. They felt that an additional notice needed to be given and our relocating the crematory to the rear of the property at the request of your Commission and at the request of the neighbors constituted a new application which should have required a second notice and that the goof up in the notice that was not filed by the Journal Inquirer but testimony was taken at the hearing caused a sufficient error and had us do this hearing over again. The remand was based upon the issue of notice. In that Supreme Court opinion, there was a reference to a footnote. It’s footnote 3 and it says that the Enfield Zoning Regulations provide in relevant part that a special permit is required for all industrial and/or commercial uses which have as a primary activity the handling, use, treatment, processing, storage, incineration or disposal of hazardous materials – Enfield Regulations 16.2.9, the one I referred to earlier. And then the sentence says “the parties do not dispute that cremation of bodies of the dead constitute disposal of hazardous materials” - the implication being that we, Leete-Stevens, and the Commission, since we are all parties, agree that it involves the disposal of hazardous materials. I submit to you that there was never any stipulation. Neither myself – and I don’t think Attorney Willis at any time indicated that we stipulated to that. In fact, from the hearing first or second page of the transcript when we were here in 1998, our whole point was that that was an incorrect reference since the human body is not hazardous waste and that the sections that deal with the disposition of hazardous materials do not apply to this accessory use. So, that is a footnote. It is a footnote and a footnote is dicta. It has not legal effect whatsoever and, in fact, neither the Superior Court nor the Appellate Court reached this issue because although it was argued at the Superior Court level, the judge, Judge Gallagher who wrote the decision at the Superior Court level, chose not to decide the other issues that were before her but simply to rule that the notice was defective and her decision was upheld by the Superior Court. Yes, it’s in a footnote. It’s wrong and has no legal effect.
And I don’t know how you want to proceed. I was trying to be as precise as I could. I don’t know if you want to wait to ask questions of our team or ask them now – whatever the Commission wants.
Commissioner Egan: I direct the question to our attorney or Jose. We’ve been instructed that we cannot make any determination based on new law or change in the law and that we must make the determination based as to what the laws were at this point in time that the application was first heard. Tonight the applicant has presented two new regulations or changes in regulations, both deal with the air permit and the new toxic regulations – both that the air permit is not required now for crematories and that the limits set forth in the toxic regulations as they exist now have been changed and this facility would not meet the threshold for regulation. I think if we could get some clarification how they can use new regulations and we’re not supposed to.
Attorney Matthew Willis: Let me address that. The application itself with your zoning regulations is considered during the regulations of 1998. I am presuming that Mr. Fahey is using this as an illustration in regards to the regulations involving hazardous materials and what are hazardous materials. What that actually is is up for your Commission to determine. It’s your regulation. I want that clear.
Mr. Giner: The microphones are not working. These are not working and these are. That’s the problem. (pause in hearing while microphones were adjusted)
Chairman DiPace: The question is the intervener – is this something automatically approved or is this something that is approved by the court or is this something that is approved by this Commission?
Attorney Matthew Willis: What happens is this. You’re going to have to make a determination. This Commission will have to make determinations finding that the specific claims that are set forth in their verified pleading are within your jurisdiction. If that’s the case, then you’re going to have to review whether the conduct or the application does or is reasonably likely to cause pollution, impairment or destruction of the public trust and the air, water and other natural resources in the state and, secondly, the Commission will have to determine whether the proposed conduct would cause – if there’s any feasible and proven alternatives with regards to that. So that’s a determination you’re going to have to make. I think you have to listen to what people have to say.
Chairman DiPace: That’s what I wanted to know. In my opinion, based on what you just said, I think we need to just move forward the whole hearing. It is kind of hard to predetermine that without hearing the entire hearing. So I would say be on the safe side and the answer is go forward with this as it stands with the intervener. Correct?
Attorney Matthew Willis: Yes. You have to recognize the intervener involved.
Chairman DiPace: Are there any questions or concerns from Commission members. Hearing none, I’m going to move it along to the intervener.
Attorney DavidBaram: Good evening. While we’re setting up our easel, I’ll begin to try to expedite the time. For the record, I’m Attorney David Baram from Bloomfield, Connecticut with the law firm of Clayman, Tapper and Baram. With me this evening are Phil Forsley and Kevin Miller of Fuss & O’Neil, Consulting Engineers of Manchester, Connecticut. I’ll introduce them with more elaboration shortly.
I’d like to begin by explaining our perspective –
Chairman DiPace: Excuse me, before you get started. I’m going to recess this hearing for ten minutes to try to straighten out these microphones due to the static problem we have. I’m going to recess this meeting for ten minutes.
(Commissioner Krebs made a motion, seconded by Commissioner Duren, to recess this hearing. Following a unanimous vote of the Commission, the hearing recessed at 8:40 p.m. The hearing reconvened at 8:40 p.m.)
Chairman DiPace: Jose, are you all set? I’m going to call the meeting back to order. Will the Secretary please take the roll.
Commissioner Duren: Chairman DiPace, Vice Chair Hickey, Secretary Duren is here, Vice Chair Cooper, Commissioner Weseliza, Commissioner Krebs, Commissioner Egan, Commissioner Sarno, Commissioner Lefakis (absent).
Chairman DiPace: Sorry about the delay.
Attorney Baram: No problem. We rather enjoyed it. It gave us some time. Thank you very much. I think I’ll just start over really quickly. I’m Attorney David Baram from Bloomfield, Connecticut. With me are two consulting engineers from Fuss & O’Neil, Phil Forsley and Kevin Miller.
I’d like to take a moment to give you a perspective of the history that’s a little bit different than what Attorney Fahey said. As you may remember, in July, 1998, this Commission passed this application for a crematory on a 4 – 3 vote – very, very close. From that time, because of various procedural and substantive concerns, the neighborhood and my clients appealed this matter to the Superior Court and then to the Appellate Court. It’s actually been pending in the courts for seven years. So I think it’s worth just a minute or two to explain what the courts actually said.
The Superior Court declared the entire application null and void entirely. The Appellate Court, as you heard, remanded it for a new hearing this evening. Under the context that this is a new hearing – it’s as if the building doesn’t exist and that’s how you have to view it.
The Appellate Court made much more findings than just the lack of notice. And I want to explain because they are pertinent to your deliberations this evening. First of all, they said this is a zoning matter and it’s an appealable matter. Secondly, even though the applicant promoted special interest legislation in 2001 which attempted to exempt his crematory operation from Connecticut General Statutes 19a-320, the court indicated that that legislation did not affect the requirement that the applicant comply with Section 19a-320 as well as the Enfield Zoning Regulations. This was a major issue because the applicant was attempting to say that there was no right to appeal and that, therefore, they could circumvent not only your regulations but state statute as well. The Court did not agree with that.
It also indicated that the application must be viewed with the regulations and the laws in effect in 1998. Now, the applicant built the crematory during the appeal period. Why did he do that? They did it because Statue 19a-320 exempted crematories which were in operation from being within 500’ of a residential zone. Obviously, this crematory is well within 500’. In fact, the courts determined it was within 100’ because my client was given appealable status called classical agrievement based upon the fact that she lived in a residence within 100’. On this point, the applicant was successful because there was legislation again that exempted him from the 500’ regulation if the crematory was built before October 1, 1998. But that was his choice. It was an economic, business choice. It’s not relevant to you because you can’t consider economic or financial aspects of the applicant. So if, hypothetically, you turn this application down, while we may have empthathy for the applicant on his investment, it cannot be a consideration before you this evening.
Obviously, the Court found notice defects but the Court made some other opinions in this decision. First of all, it emphatically said that the local regulations apply. Secondly, it said that despite the special interest legislation to exempt it by connecting it to an air quality permit acquired many years before the applicant even submitted this application, that he is still subject to the state statutes and to your regulations. And, the opinion, which we have handed out because I don’t want you to take my word for it because you are getting conflicting opinions - I want you to read it yourselves – indicates that the regulation 16-2.9 involving hazardous wastes and incineration do apply. It’s in the body of the decision and then there’s a footnote that references the details of that comment. Now, Attorney Fahey indicates that they have not admitted that this is hazardous waste or materials. We had a very long hearing before the Appellate Court and many questions were asked by the justices. One question was asked about the special interest legislation and whether it only affected this crematory and the answer was yes. There may have been other questions about the toxicity of emissions coming from the crematory. I honestly don’t remember every question that was asked but apparently the justices concluded that there was no opposition or contrary point of view that this constituted hazardous wastes and incineration for purposes of your regulations.
With regard to publication, I want to make a couple of points. Obviously, you’ve done the publication according to your local regulations and 19a-320, but for the record I want to state a couple of concerns which I conveyed to Attorney Matt Willis, your Counsel this evening. I indicated that the notice should have contained reference to Section 16-2.9, the hazardous waste regulations which require a separate special permit application. My request was rejected. I also requested that the notice reference two zones, which I will explain momentarily, an R-33 and an R-88 because if I’m persuasive enough based upon the substantive information I’m about to give you, we’re talking about a use that is overlapping in two separate zones, an R-33 zone and an R-88 zone. Those were omitted. Whether or not notice was given to the public health department as required under 19a-320, I’m not sure because I don’t know that.
The applicant here is supposed to be applying under three separate statutory or regulatory authorities. The first one, as was correctly pointed out, is for an accessory use to a funeral home under 9-1.9 of your regulations. The second is what we call a location approval under 19a-320, the state statute which we’ll discuss in a moment. But the third criteria which has to be reviewed by this Commission because it’s applicable – and I’ll go into detail in a moment – but most importantly, applicable because the Appellate Court of the State of Connecticut said it was – is 16-2.9 which invokes an entirely different set of regulations that is completely relevant to the environmental and the health aspects of this neighborhood and the environment around it.
And so before I begin the formal presentation, I reiterate that there are three requirements that this applicant must meet – two special use permits and the State Statute 19a-320. I will also show you that this is not an accessory use. I will show you that this has a detrimental impact to the community, the environment, the aquifers and perhaps even the drinking water, that it violates your zoning regulations in at least two or three ways, that it violates the Planning and Zoning stipulation of 1976 which was a firm part of your approval to the funeral home, that it fails to comply with the requirements of special permits in your regulations because the applicant has not filed the proper and necessary documentation that you need to make an informed, an intelligent and an objective decision and that the applicant’s submission have inaccuracies and contradictions which you need to be aware of. And so as I begin, I ask you, as difficult as it may be, and I know some of you sat on the first application, that you have to view this as though you were hearing it for the first time. You have to pretend that this crematory doesn’t exist. It’s going to be built if you approve it today. You have to apply the laws in existence in 1998. The bottom line from all of this is this crematory just does not belong in this neighborhood.
So let’s begin with some easy issues. The first issue is the 1976 slope stipulation and I have a helper who is going to pass out the handouts all at one time so that you can follow with me. In 1976 when the funeral home was approved, it was passed with three stipulations. The relevant stipulation is the third one and the third one said that the slope at the southerly end of the property and the trees thereon shall not be disturbed except as necessary for the installation of storm drainage. And, of course, the storm drainage that they were talking about had to do with the funeral home. There was no anticipation at that time that there would be any further development. Now why is that important? It is important because we’re talking about a slope that meets the definition in your wetlands regulations of an escarpment. It has greater than a 25% incline and there is a stream at the bottom within 100’ clearly making this subject to the jurisdiction of the Wetlands. And when the engineers address you, they will go into detail and show you on the maps where the stream is and how the escarpment is calculated. But for purposes of this aspect of the presentation, there was a stipulation. When you approved the crematory in 1998, you did not remove the stipulation, you did not vote on the stipulation. It wasn’t published. And I’ve given you exhibits that first of all show the three stipulations. It shows the comments made by the Town Planner at that time about the sensitivity of the trees and the slope and the concern about erosion. It shows you the advertisement – that there was no mention of a revocation of the stipulation. And so I would ask you this evening to honor the stipulation that was granted by a predecessor body for valid reasons that still has validity today and, as you will hear, your own staff members have observed erosion at this slope. There is concern about the contamination of the stream and this is an area in your town plan of development that is part of the Scantic River preserve, something that is a critical resource to this community if not the state. And you are allowing something that exacts chemical emissions, hazardous waste materials and incineration to be in close proximity to it.
The second point I want to make with regard to this is that if you find there’s a violation of the slope stipulation, you cannot, by law, find that this is an accessory use because you can’t allow a use that violates your zoning regulations. And, you also have the ability to determine that there is enough question that this matter should be referred to the Wetlands Commission for a complete review by the entire Commission before you render your decision and I will show you the state statutes that require you to do that in a memo from your own Wetlands Agent that I think raises enough questions and doubt for you to prudently take that action.
The second issue again which is fairly simple and not complicated is an issue involving the R-33 zone. Your regulations in Section 1.3 and in Section 9.2 – and we’re handing those out – indicate that only one building can be on a lot in an R-33 zone. For whatever reasons you decided to allow the applicant to create two buildings, that creation violates the R-33 zone because the regulations say that a building which includes shelter, housing, enclosure of persons, animals or materials cannot have two buildings in one lot. And here the applicant is arguing that he had a lot line adjustment and it’s only one lot now. So if that’s true and you accept that, that it’s one lot, we violated the zoning because you can only have one building on a lot in an R-33 zone. The relevancy – first of all, it violates your regulations. Secondly, it negates the possibility of finding an accessory use and, third, because of the placement of that building, we are now in endangering the habitat.
The third issue that I would like to raise is regarding special permits as they apply to hazardous wastes and this gets a little bit more complicated. While I’m speaking, we will hand out some materials. 16-2.9 of your regulations has to be read in connection also with the fact that a crematory may be allowed as an accessory use. 16-2.9 indicates a special permit is required for all industrial and/or commercial uses which have the primary activity of handling, use, treatment, processing, storage, incineration or disposal of hazardous materials. Now, you heard some comments from experts of the applicant before that this is not a hazardous waste plan but that’s not the issue. The issue before you is does it meet the definition of this regulation which talks about the activity of handling, use, treatment, or incineration of hazardous materials. We’re going to show you that this does involve hazardous materials. It is incineration. That’s what cremation is all about and I’m going to give you some state statutes that define it that way. And so if 16-2.9 applies, then an entire other body of regulations is subject to your consideration.
And what I’ve done is I have zeroxed a few of these regulations, the pertinent ones, because I’m sure that you don’t have your old regulations. But, first of all, it defines hazardous materials and it’s a very broad definition. It’s not like the other experts said according to the EPA or the Federal regulations. It’s much broader than that. But the bottom line is it is defined also under your regulations and your regulations define it as hazardous. In 1.2.7, there is also a definition of hazardous wastes that is very broad in application and also focuses on your regulation. We then go to 12-3.1. It indicates what uses are permitted in an industrial zone and those involved uses with hazardous waste materials but, interestingly, 12-3.9 also says that unless the use is specifically mentioned in your regulations, it is prohibited. I beg you to find in your regulations in effect at that time any definition or reference to a crematory. It doesn’t exist. That’s why the applicant is here tonight – because the only way that they could get permission for this is for you to find it as an accessory use. But it can’t be an accessory use because it involves hazardous materials. It can only go in an industrial zone and the industrial zone I would submit is my first point. It doesn’t even permit this use. It’s not permitted at all.
Secondly, if for some reason you did find it was permitted, you then have Section 12-3.1.3 which indicates, as Attorney Fahey pointed out, that such a facility has to be 1,500’ from a residential zone and it has to be 75’ from the water table. You know this evening that we’re 100’ from a residential zone. The State Statues said you had to be outside of 500’ but they got around it because they built the crematory before October 1, 1998 and now you have your statute that says it has to be 1,500’ away. We’ll also show you that there are aquifers in this area that are within the 75’ range.
Now, if you turn to Chapter 16, you will see what special permits for site plan review require. I’m not going to go through all these standards because most of them you are familiar with. I’m sure you do it all the time. However, if you look and you jump to page 210, it has special requirements for any use that involves the use, handling, treatment, processing, storage, incineration or disposal of hazardous materials. And I submit to you not one, not one of these items has been submitted to this Commission for your review or your staff’s review. There’s no disclosure of whether it is unconsolidated deposits above bedrock. There’s no detailed surface water hydrological survey. There’s no ground water hydrological study. There’s no bedrock study. There’s no meteorological study. There’s no climatic study. And there’s no mapping or information about the aquifer protection zone. These are important because you have to make decisions that affect the health, welfare and safety of the residents in the Town of Enfield and the community that lives next door to this crematory. This is important to you because you have to decide whether a very valuable preserve along the Scantic River is going to be affected by this use. And so I would submit to you that these applications are all important.
Now let’s also talk about hazardous waste. When the applicant submitted the application in May of 1998, what did he say – that he was filing it subject to the regulation which was 16-2.9. It was only when he got his attorney involved that they decided to change it to the State Statute and argue that the State Statute usurped your regulations, that you had no authority, no authority, to implement your own regulations. But three of you voted against it because you thought otherwise and, obviously, the State Appellate Court and the State Superior Court thought otherwise.
When he submitted his supplemental application for some changes, he changed the section numbers because we had learned a lesson already about trying to usurp and circumvent your regulations. But what happened when he applied for a building permit. Now, here is an objective official of your town and he defines this use as a BF1 and he attached – this is your official and I didn’t ask for this information. This was part of the public record back in 1998. He defines this as refuge incinerator and it’s under the moderate, hazard, factory and industrial uses. So by definition of your Building Inspector, this is a hazardous use.
Now, let’s look at the DEP permits. Again as was astutely questioned by Commissioner Egan, whether or not they have changed now is not relevant. We’re looking back at 1998. The first permit from the DEP which was in 1998 indicates a couple of thing. Number one, it has ozone non-attainment status and it’s checked off “serious”. On the second page, it says charging material and it says type 4 pathological waste. It checks off on the top of the form incinerator and it checks off that the stack to the closest property line is only 50’ - fifty feet – if you can imagine it. Now, the first permit in 1992 basically has the same information. There are no changes in terms of its designation as an incinerator having pathological wastes being hazardous wastes and it does, as the experts indicated before, have the criteria pollutants. Our engineers will describe that for you but for now emphasize the word “pollutants”. What is a pollutant? A pollutant is something that endangers the environment, endangers the health, welfare and safety. Now, for those of you that are probably like me – we’re not all that well versed in pollutants and toxics and all that – so we have submitted a complete package for your review. It is a list of all the pollutants and at the very end of that package is a chart which shows all of the health effects that these pollutants can cause. There’s also a map that we handed out which is a map done by the applicant’s engineer and not ours. It was handed in in 1998 and it shows distances from the crematory building and the funeral home building itself. However, regulations in state law say that the measurement is from the property line not the building itself. So you’ll see even if you measure from the building, you’re within 500’ but you’re certainly within 1,500’.
So when we’re talking about pollutants, I’ll raise another issue for you. In the 1998 hearing, a floor plan was submitted and I’m going to submit this entire plan as an exhibit. It shows that the floor plan includes an office, a lavatory, storage, a crematory and garage. However, Connecticut General Statute 19a-323 indicates that a body cannot be cremated until at least forty-eight hours after death unless it’s a communicable disease. So where are these bodies being held? If somebody brings a body for cremation and you can’t cremate it for forty-eight hours, is it just sitting in an office deteriorating? Is it in a storage or freezer vault off premises? I would think that the crematory facility itself would have the proper storage facilities for deteriorating bodies and I don’t see that in the site plan unless the building has been altered since its approval.
The next item I’m going to talk about is the environment itself and the nature of the activities. I would ask if we would pass out these exhibits while I’m talking.
Chairman DiPace: Why don’t you just give them all to Jose and let Jose pass them out so the Commission can pay attention and listen to what he is saying.
Attorney Baram: I do have copies for each of you. I just thought it would be easier -
Chairman DiPace: Jose can pass them out. We’re sitting here passing them down and we’re trying to listen to you and we’re passing papers down and we’re missing some of what you’re saying.
Attorney Baram: No problem. We have maintained from day one that this matter should have gone before the Wetlands Commission and you’ll hear the details of that in a moment because there are wetlands activities. But we have two recent memos that are handed out, one is handed out and one we just got tonight, which indicates that your Wetlands Agent has determined or wants more time to review based upon maps that were submitted by the applicant in 1998. If you look at these different maps, you will see that they show different things. Some maps show a stream and some don’t. Whether or not the Wetlands Agent in 1998 had all the maps, I don’t know. You should all know this, by the way. I was not involved in the zoning hearing in 1998. I only got involved in the litigation. So I wasn’t here to help the neighborhood.
Based upon the memo from your own Inland Wetlands Agent and what we’re going to tell you tonight, this clearly is a wetlands issue and under 8-3c. this Commission is obligation, in my opinion, to only make a determination. You can hear the presentation but you can’t make a vote or determination until there’s a report by the Wetlands Commission and you have to take that report, good or bad, into account as part of the factors that you consider. And we desperately need to know what the Wetlands Commission thinks. Now, the Wetlands Agent, as I understand it, while he has been out there and he’s seen erosion and he makes reference in his memos to his continuing concern but he’s talking about future development. Well, again, as I exorted you before, you have to view this as if this was a first time application and, therefore, as a first time application, if there’s a wetlands issue, it needs to be reviewed by the Wetlands. What happed in 1998, I don’t know. I wasn’t here. But I know in 2005 what’s happening and I know that there’s a wetlands, there’s a stream, there’s an escarpment and this, without question, is a slam dunk. This is a wetlands issue and it needs to be presented. That’s important not only because it’s wetlands but because it involves the environment and you’re putting a crematory next to some very sensitive environmental areas. And even though the wetlands regulations say the regulated area is within 100’ of a stream that is below an escarpment or 25’ from a wetlands boundary or 75’ from a water course boundary or 150’ from a water discharge area, the case law has said that if there’s something outside the regulated areas that impacts the regulated areas, there’s even broader discretion for the wetlands. So this is something that definitely should go to the Wetlands and I will make a formal request as part of the record that you not act on this application, refer it to Wetlands for a full report of the entire Commission at this point because, obviously, the Wetlands Agent has made some observations and is suggesting maybe it’s not germaine. I think that needs to go to the entire Commission to make that determination.
We’ve submitted two letters, one from Fuss & O’Neil and one from Connecticut Eco Systems. Connecticut Eco Systems was submitted back a while ago but Fuss & O’Neil was a recent report and, basically, verifies and substantiates the wetlands nature of this site. I also would indicate that your own zoning regulations and the state statutes require that there be wetlands review when there are wetlands issues. The state statute that is relevant is 8-3c and your own wetlands and zoning regulations require that there be at lest fifteen days submission of the wetlands report for you to consider.
I would now like to introduce and did we hand out the resumes – we did, okay – of Kevin Miller and Phil Forsley who are with Fuss & O’Neil and will make a brief presentation on the particulars and the details of both the wetlands environmental issues, the toxic emissions and the like. I will turn it over to them.
Phil Forsley: Good evening. For the record, my name is Phil Forsley. I’m a Senior Project Manager at Fuss & O’Neil. What I’d like to do is continue the thoughts that David started regarding our review and the project as it pertains to wetlands. We do agree with Attorney Baram that the application should have been filed with the Wetlands Commission. I’d like to just point out a couple of maps I have and then I’ll go into it a little bit more but Attorney Baram referred to different representations of wetlands and water courses on the site. What I would like to point out is this one map called Alternate 1 that shows a water course along this property which is along the easterly property line of the funeral home site. This is the only map that this water course shows on. It doesn’t show up on any of the grading plans so it seems as though – and the stream does end right at the property line – it seems as though it ought to be considered a little bit farther.
This is a proposed site plan for the funeral home. As Attorney Baram mentioned, there some activities that took place in construction of a parking lot and I’ll show later on of some retaining walls that were constructed when the crematory was built. The steep slopes that you see here are mapped as terrace escarpments on the USDA Soils Maps and you can see – these are one foot contours so it looks steeper than you folks might be used to seeing when you see a contour map. But, nonetheless, the slopes are in excess of twenty-five percent. Down at the bottom of the escarpment, there is a water course. There’s another water course – actually this is a storm water discharge and I don’t know whether that was in place prior to the activity here but this is clearly a water course unassociated with the activity and with storm water drainage. In any event, on this site plan for the funeral home, there are parking areas and driveways shown directly on the terrace escarpment in this area here as well as over here. So they are on the eastern and western rear portions of parking.
This next plan - which I have handouts for and I will submit them and they can be distributed or not but I will submit them for the record - is an as built plan that was prepared for the crematory and I should have highlighted the existing crematory. It is this rectangular building here. During construction in deference to the terraced escarpments admittedly, retaining walls were built along the back portion of the new driveway for the crematory and then along the easterly side of the building. They did their best to keep these off the escarpment. However, as Attorney Baram pointed out, this retaining wall, the easterly one in particular, was constructed right at the top of the escarpment. The escarpment is clearly a regulated area. There is a water course down at the bottom of it and I believe the wetlands regulations that were in effect back in this time period indicated the entire escarpment is to be considered a regulated area if there’s a water course associated with it. I showed on the previous map that there was. So, really, this retaining wall while not directly on the escarpment is directly adjacent to it. You couldn’t get any closer and it really should have come under the jurisdiction of the Wetlands Commission.
I point out I’m not sure about Enfield but in many or all of the other towns that I work in, including the one I live in, the wetlands commission would consider that to be a regulated activity because of its proximity to the regulated area which is, in this case, the escarpment.
Attorney Baram mentioned the location of the site relative to aquifers. The site is within the watershed of Connecticut Water Company’s aquifer. They have a published map indicating that. And, assuming that an application should have been filed with the Wetlands Commission, the Wetlands Regulations also would have required the applicant to submit a copy of the application with the Connecticut Water Company because they have a published aquifer map. I don’t believe that was done.
I would like to speak very briefly. Attorney Baram has really covered this but with regard to the zoning regulations and handling or management of hazardous materials, the regulations say we’ve already talked about the proximity of this to residential zones and so forth but there’s also discussion in the zoning regulations about proximity to ground water. The regulations say that processing, storing, incineration and or disposal of hazardous or toxic materials should not take place within 1,500’ of a residential zone or within 75’ of the water table. I would like to make two points. Number one is that the crematory building – and what I’ve done – somewhere – is made a rudimentary composite of two different maps that I’ve shown tonight. One is the site plan which is underneath and the other is the as built plan for the crematory. I wanted to show the crematory in relation to the water course. This is I believe the only map that I found that shows that. But what this shows, if you look at the elevations and I won’t bore you with them, that the crematory is about 50’ above this water course. In the report that’s handed out, in the back of my letter, are data from a U. S. Geological Survey – I’m sorry, this is a Connecticut DEP hydrogeologic data for the upper Connecticut River basin. It’s a 1971 water resources bulletin. There are three monitoring wells that more or less surround this site that were monitored. They were drilled and monitored. Ground water was found to vary at depths between fourteen to sixty-five feet. This water course is about fifty feet below the elevation of the crematory. We can deduce from that and the fact that these are highly impervious soils that the water course is directly associated with the ground water. And the point of all that is that this site is well within the 75 vertical feet which is the setback indicated in the zoning ordinance.
Chairman DiPace: Just a quick question. Do you know what the depth of that aquifer is?
Phil Forsley: The depth below ground water according to that published data is – depending on which well you’re looking at and you’ll see how the wells are plotted out – the deepest one in a triangle that surrounds this site is 65’. The shallowest was found to be 14’.
Chairmann DiPace: Would it be a Level B aquifer?
Phil Forsley: This is a Level A aquifer map by Connecticut Water Company.
Very briefly, I would like to talk about hazardous materials and I’m going to spend all of thirty seconds doing this. Just from sort of a common sense and on the lay level regarding how hazardous these materials are and whether they are wastes or hazardous materials, my understanding, and I think the data that Attorney Baram handed out, embalmed bodies contain formaldehyde, medicines that were used by the deceased and so forth. I believe these are considered, at least, to be biohazardous materials and biomedical wastes. Whether they fit the definition of a hazardous waste or not, I don’t really know. But they are clearly hazardous materials and we would appeal to common sense in considering whether they should be managed and incinerated certainly in such close proximity to a residential zone.
That’s all I have and I would be glad to answer any questions.
Chairman DiPace: Any questions from the Commission?
Attorney Matthew Willis: I have one question. Are the plans that you have up there – are you submitting them for the record?
Phil Forsley: Yes, and those actually were plans drafted by the applicant and submitted in 1998.
Mr. Giner: But you have overlaid stuff.
Attorney Matthew Willis: You’ve marked on it.
Mr. Giner: You’ve overlaid stuff.
Phil Forsley: Yes.
Mr. Giner: We can keep that, right?
Phil Forsley: Yes.
Mr. Giner: We need to.
Dr. Kevin Miller: Good evening. For the record, my name is Dr. Kevin Miller and I’m the Director of Environmental Chemistry and Risk Assessment at Fuss & O’Neil. I’m not an engineer. I’m a chemist and a toxicologist. And I was asked by Attorney Baram to look at the literature on crematoriums and try to determine based on the literature and knowledge of the site if it posed a risk to human health and the environment. It was an interesting task to tell you the least. The way we normally go about doing risk assessments – any site has potential contaminants – is that first what we do is determine if, in fact, there are chemicals of concern on the site or, in this case, coming from the stack of the crematorium. The second thing that we normally do is to try to determine at what concentration are these chemicals. Thirdly, if these chemicals are toxic or if they are not toxic. Fourth, we determine if there is a chemical there and it’s at significant concentration and it’s toxic, what is the exposure to potential receptors at the site. By receptors, I mean people, children, and the eco system – fish, birds, endangered species and all that. Based on all those sections, we then try to determine if there is risk to both human health and the environment. I have and I will submit for the record – it’s fairly thick – a document that includes both my notes tonight and some of the supporting information that I made some of my conclusions on. I also do have a copy for each of you but perhaps we’ll pass those out later or maybe you want to take these up. Each one is a separate one.
Several people have talked about contaminants of concern. In the first section of the document, it lists approximately twelve chemicals. What I’ve done is I’ve taken those from a Bay Area air quality survey that was done in contesting a crematorium in California and the Bureau of Air Toxics of the Bay Area published this off their web site. So it comes from a public source and it clearly indicates again there’s about twelve or so different contaminants. I’ve also taken the liberty to summarize what’s in a table for you and, quite briefly, each one of them has either carcinogenic effects or other effects to human health. Now, the question would become is there enough of them there to cause a problem.
The second section in that book – I have copied out two thoughts from the EPA’s web site – is a service they call Iris which is the toxicological information of each one of those chemicals. Those were printed out yesterday so they are as recent as yesterday. They indicate again all the health effects that can be cause |