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ENFIELD PLANNING AND ZONING COMMISSION
TRANSCRIPT – PH#1414.02 – LEETE-STEVENS
JULY 21, 2005
PRESENT: Anthony DiPace, Chairman
James Hickey, Jr.
Jeffrey Cooper
Charles Duren
Robert Egan
Karen Krebs
Karen Weseliza
Kathleen Sarno, Alternate
ALSO PRESENT: Jose Giner, Director of Planning
Commissioner Duren: PH# 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 pursuant to Connecticut General Statutes Sec. 19a-320, Leete-Stevens, Inc. applicant/owner. This application shall be considered under the zoning regulations in effect at the original time of filing. This re-hearing is at the direction of, and on remand from, the Appellate Court of the State of Connecticut, Urbanowicz et al v. Enfield Planning and Zoning Commission et al, 87 Conn. App. 277, (2005)
Chairman Anthony DiPace: I’m going to reiterate that every testimony that’s been given already through these public hearings is already on the record. It does not have to be reiterated. We’re only looking for new information from people that have not spoken or somebody who has spoken but has something new to say.
Is the applicant present?
Attorney Matthew Willis: I don’t think Attorney Fahey is here yet so I don’t know if you can take a short break.
Chairman Anthony DiPace: From my understanding, both attorneys were told they should be here roughly at 8:00 p.m.
Mr. Giner: We had a couple of applications drop off. We can go out of order and take some of the stuff at the end of the agenda.
Commissioner Duren: Why don’t we do that?
Chairman Anthony DiPace: We already opened the hearing.
Mr. Giner: You can continue it until you reopen it – the same evening. You can do that.
Commissioner Duren: We can continue it to an unsure time or we can continue it until 8:00 p.m. or continue it to a time certain.
Attorney Willis: Continue it until after the next matter whatever that is.
Mr. Giner: I think you just need a motion to take items out of order.
Chairman DiPace: I, personally, would rather recess for ten minutes. We read the legal notice. We took the roll. Rather than going to something else and then come back, I’d rather on the cautious side take a ten-minute recess.
Commissioner Hickey: Mr. Chairman, I make a motion for a ten-minute recess.
Commissioner Cooper: I second it.
Chairman DiPace: All those in favor (unanimous vote of the Commission). (Reconvened at 8:00 p.m.)
Commissioner Duren: Call the roll. (same Commissioners present)
Chairman DiPace: Is the applicant present? We recessed for ten minutes. At the last hearing there were several concerns that were raised. I’m not sure if you want to address some of those concerns.
Attorney Thomas Fahey: Thank you, Mr. Chairman, and I apologize for being a little late. I was making some copies. Yes, I have prepared some rebuttal comments. I’ll try to keep them brief and concise. We do have a couple of expert witnesses to respond to some of the comments that were made at the last hearing.
I’m Attorney Thomas Fahey representing the applicant, Leete-Stevens. I’d like to start with discussing a discrepancy between the representations of what exactly kind of a judgment was rendered in this case. The Appellate Court overturned the Superior Court ruling and concluded that the special permit at issue was voidable, not void, and, therefore, reversed the judgment of the trial court and remanded this matter to your Commission for further proceedings. There’s a big difference between a voidable judgment and a void judgment. The definition of a voidable judgment is a judgment that although seemingly valid is defective in some material way. In this case, it was the notice. The notice was ruled as being defective and we all know there was a slip up between the staff and the Journal Inquirer in getting that notice done. We’re back here now with a new notice. All of the materials submitted at the previous hearing, the records and exhibits are still before you. As you know, they have been resubmitted and made part of the record here now. They don’t go away. We have supplemented, as has the opponents, with additional exhibits. What is interesting, though, is that none of the arguments offered against the crematory in this hearing are different in any way from those that were offered in 1998. All of those points were raised at the initial hearing.
Second, there has been continuous references to special interest legislation; namely, the legislation that granted relief from the 500’ radius rule. What the opponents don’t tell you is that the 500’ rule was instituted in the first place as a product of special interest legislation. It was the product of one person, a resident of the Town of Westport, who lobbied his local representative to pass an amendment because he was afraid of depreciation of his real estate value. He, himself, called it NIMBY legislation, NIMBY meaning “not in my backyard.” There was no groundswell of public support for the radius requirement. He was the only one that testified at the committee hearing. And he offered no support for the decline in real estate values. As you can well imagine, there hasn’t been any such decline in the Town of Westport, Connecticut. His comments are attached to the submission I’ll make at the end of my comments.
Slope Issues – The slope condition is a product of a 1976 special permit. that’s twenty-nine years ago now – that was raised in 1998. Twenty-two years after the original approval, it’s being raised here again today. No enforcement action or complaints from the Town exist. In fact, in 1998, the Town, its staff and its wetlands consultant and engineering staff, concluded that there was no violation. The record of that hearing has comments from our engineer showing how he dealt with the slope and how it wasn’t a violation and how it wasn’t intruding on the wetlands and that was confirmed by the wetlands consultant at that time. The present wetlands consultant has revisited the site again finding no violations. All of the comments of the opponents with respect to wetlands, slope, etc. emanate from a stream symbol appearing on a map which is part of our original submission. It was a historic symbol. At one point, the stream served as a boundary for the property. However, as your town requires, he had to go out and get the A-2 mapping which was done here. And right on that same map that they are showing the symbol on is a note that clearly indicates that the stream symbol was from historic data and that field inspections do not show any stream to exist. Again, confirmed twice by our soil scientist, submitted at the previous hearing, submitted again here, reconfirmed by our soil scientist today and confirmed by your consultant.
All of their arguments regarding those types of environmental concerns emanate from measuring distances from a stream symbol shown on an old map, a stream which does not exist and has not existed for many years at least in terms of being any kind of an issue causing any kind of an environmental concern as confirmed by your staff.
The opponents address those issues in Sections 41 and 47 of their trial brief which they submitted at the last hearing. Those contentions and allegations were refuted in our trial brief. Additional information is offered for the record in two reports from our consultants and soil scientist dated 4/5/99 and 7/19/05 which we attached to here essentially refuting each and every one of those contentions.
Wetlands – It is my understanding that although there was an effort to try to get the Wetlands to take jurisdiction over this matter, I understand – and I don’t know if any minutes have been generated yet or not – but I do know from what I understand that the conclusion of the wetland consultant today as it was by your previous consultant in 1998 is that the wetlands have no jurisdiction over this matter. Therefore, the reports – there were two of them submitted by email at the last meeting. I don’t know if there’s a third but it’s my understanding that those reports constitute the report required by Section 8-3 of the General Statutes to your Commission.
Notice – The Town Planner notified the Health Department. That was questioned at the last hearing by the appellate and I believe that Mr. Giner did clarify that at the last meeting.
The R-33 Zone – There’s no question there hasn’t been either in 1998 or today – that the property, the crematory, the funeral home and all the property that is the subject of this application is in an R-33 zone. The appellate completely refers to Lot 89 as if its entirety was incorporated in this application. It never was. The lot line revision which is of record and does not require any deeding has been approved by your staff. It is incorporated simply as a 15’ strip into Lot #88. There is a much larger portion of Lot #88 that’s also in the R-33 zone. Again, at the last meeting, that was clarified I think by staff to you – by Mr. Giner again – based upon the minutes and historic record of the actual zone change application.
Noise – We talked about the noise studies and submitted them to you at the last meeting – both the studies done by the Town and the studies done by our consultant. If you look at those noise studies, one thing that I did mention at the last hearing that you should be aware of is that the existing background noise from traffic coming down South Road – if you look at the chart submitted by the consultant – is consistently higher than the 45 decibel limit of the residential zone meaning that in their existing condition notwithstanding this crematory which didn’t even exist, the noise in that neighborhood based on traffic and background noise, whether they be lawnmowers, tractors or cars coming down the street, is consistently higher than 45 decibels which is the residential limit – probably because of where it is on South Road. It’s probably a heavily traveled road. We didn’t do that because that was noted in all the times that it was tested by the Town consultant that that noise was higher than the 45.
Hazardous Wastes – The key to all other arguments regarding hazardous waste has to do with whether or not Section 16-2.9, 16-4.1.14, and 12.3.19 – whether those sections apply to this application. In order for them to apply, you have to conclude that this disposal of human bodies constitutes disposition of hazardous wastes. Their consultants did not dispute our consultants’ contentions with respect to that. We put evidence on based upon the existing law today and existing regulations that clearly show that it is not hazardous waste. It’s not within the definition of your regulations. You can’t get to these sections of the regulations without that happening. Furthermore, the primary use of the building has to be disposition of those hazardous wastes. I submitted to you the legislative history – all of it that I could find in your records – for all of those sections. If you read them, it’s pretty clear that those sections were intended to apply to the concern over the impending application of Browning and Ferris. It was asked at the same time that the state was dealing with regulations and the start up of the Recro situation. To my knowledge, these sections have never been used in the Town of Enfield. They do not exist in the new regulations. The reference to 16.2-9 on the 1998 application was the result of incorrect information provided to my client at the time of his initial application. As soon as I got involved, I quickly corrected it because it clearly did not apply. There was no resistance on the part of Mr. Burke, who was the Planner at the time, to making that amendment. Furthermore, your Commission concluded at the last hearing that 16.2-9 did not apply.
The opponents’ expert, Phil Forsley of Fuss & O’Neil, said that he did not know whether cremation met the definition of hazardous waste but he urged the Commission to apply the special permit requirements and the 1,500’ rule for the applicant. Chapter 12, which is where the 1,500’ rule is, is entitled “Industrial Zones”. By its definition, it only applies to properties that are in industrial zones. We’re in a residential zone. We are a permitted use by special permit in a residential zone. Your Commission put us there many years ago because we used to be a business zone. Your Commission put us there and also created a provision saying that funeral homes are to be permitted by special permit in the R-33 zone.
It is interesting that Mr. Forsley and Fuss & O’Neil urged the Commission to apply these Section 12 regulations and the other hazardous regulations to the applicant. Listen to what the same firm said about these very same regulations when it represented Browning and Ferris Industries. “The setback requirement” – now, this testimony was provided before the Commission when it was seeking to adopt these very same amendments and make them part of your regulations. The same regulation appeared in the 1998 set of regulations which they have been urging the board to apply to us. “The setback requirement of 1,500’ in a residential zone is unreasonable and arbitrary. It is not related to the degree of hazard posed by the facility and requires the purchase of vast amounts of land which would be removed from the tax roles in perpetuity. It would not serve to protect the public. Furthermore, the 75’ separation distance to the water table is prohibitive in that the water table throughout the Town of Enfield is closer than 75’ to the surface. It also does not meet the objective of protecting water quality because in a fine grained low permeability soil, which is where waste disposal facilities are usually located, it would take several centuries for leachate to penetrate 75’ while in a course grained gravel, the only soil type where the water table may conceivably 75’ down, such water table would be reached in a matter of minutes. Furthermore, this requirement would direct development of such facilities to course grained gravel sediments which would greatly increase the amount of ground water pollution. It would not meet the Retro criteria.”
That’s the same firm. First of all, it’s ludicrous to suggest that those regulations would even apply to this use. You can tell by their term that they were designed for large scale hazardous waste development where there is going to be significant disposition of materials and treatment of material right on site. You will hear from our consultant that we’re not disposing of anything.
Accessory Use – Opponents’ attorney was a little disingenuous when he suggested that under Section 9-2 in a Residential-33 zone you are prohibited from having two buildings on one lot. What the regulation actually says is that you can only have one house on each lot in a Residential-33 zone. That makes sense because it’s a single-family zone. It specifically permits accessory buildings which is what we are. As previously discussed, the property was a Business zone and it was subsequently changed to Residential-33 allowing our use by special permit. When the Commission did that, when the Commission changes a zone or makes a use permitted in that zone, it has made a determination that the use is compatible with residential neighborhoods. I offer you – and in this packet you will see memo from Mike O’Leary in which he goes on at length to talk about how funeral homes typically exist in residential zones, typically existing near schools and other buildings like that. And, of course, the basis of our application which you approved in 1998 is that our use is accessory, incidental to a funeral home – not to a house but to a funeral home, another permitted use in the Residential zone.
The Petition to Intervene - Oh, I’ve got this accessory use one more time. According to the Minutes of a fairly recent workshop that you had on March 29, 2001 at which you met with yours consultant – and that was at that time that Planametrics was working with your staff in redoing your regulations – Commission members – and this is from the Minutes, again, which I will submit to you – Commission members discussed whether they wanted crematories permitted and the opinions stated were only as an accessory use to a funeral home.
The Petition to Intervene – The Petition to Intervene that is submitted here must contain specific factual allegations alleging possible harm to the environment. In their petition, they list A through E. B and C are slope and wetland allegations that have been disposed of already at the threshold by staff. A alleges that 12.13-19, that’s the 1,500’ radius rule, that goes away because that only exists if the property is in an Industrial Zone. We’re not. Okay. Those were three. Those are the only three that had anything that was close to being a factual allegation. D and E are completely generalizations. They say well, the activity is going to harm the environment. There’s nothing factual there to say how, why or by what way they will even on the face, even as a factual allegation. Therefore, as a matter of law, the petition is even defective. Even if you found there to be enough alleged bare allegations in that to give intervener status, the Commission has no standing over the wetlands allegations and cannot review residentially zoned property under industrially zoned standards. Notwithstanding that, they have not met their burden to establish that the proposed activity will cause or is unreasonably likely to cause environmental harm. Note that the burden is unreasonably likely, not just a possible likely, to cause harm. They have provided no hard data or facts but simply suppositions based on fear and apprehension.
At this time, I’d like to call Tom Stark and John Petrick from GZA.
Mr. Giner: Excuse me, Attorney Fahey, do you have two more copies of that? Well, one would be fine. I’ll save myself some copying.
Attorney Fahey: Tom Stark’s been introduced and I gave his credentials at the last meeting.
Chairman DiPace: We want only new information.
Attorney Fahey: This is specifically in response to the testimony offered by their experts.
Tom Stark: Good evening. My name again is Tom Stark with GZA. I prepared this memo that I believe Attorney Fahey has just distributed. I’m going to read it. We’ll provide copies.
During the June 23 hearing, information was submitted by the interveners concerning theoretical exposure pathways which may be relevant to a discussion of the operations of the crematory. The theory of exposure pathways is well understood and accepted in the environmental industry and they apply to all human and natural activities. For example, if you put gasoline in your lawnmower, benzene will evaporate off of the gas tank, it will go into the air, your neighbors can breathe it. It can be washed out of the atmosphere and enter the soil or it can be spilled on to the ground and enter ground water. The exposure pathways that were discussed or presented last time are very clear and understood and universally applicable. These are the same pathways that apply to the use of automobiles, fireplaces, finger nail polish, air conditioners, and fluorescent light bulbs which, I suspect, you all know contain significant amounts of mercury. What differentiates these sources from one another is not their potential exposure pathways but rather the types and quantities of the chemical constituents they contain and to which a person, therefore, can potentially be exposed. A material such as a lawnmower’s gasoline may have inherently dangerous properties but cause no risk because it is used in such a way as to prevent meaningful exposure. Unlike the drawing submitted by the intervener, Leete-Stevens Enfield Chapels is not operating a chemical plant and the types, physical states, management methods and, most especially, the quantities of chemical constituents which they may manage as a result of the operation of the crematory are very different. One can easily imagine an accident at a chemical plant where a chemical drum ruptures and spills its fifty-five gallons into the soil where it can be washed into the ground water by the rain. This is an impossible scenario with Leete-Stevens and the suggestion that Leete-Stevens should be thought of in this context is irresponsible. The theoretical potential for a significant exposure from Leete-Stevens via soil, water or air used by the intervener to scare you is not supported by actual data. Therefore, it is not surprising the interveners only presented theories and not reference any of the available environmental data from operating crematories which provide this essential perspective. We will provide some insight on this perspective for you now.
Following the interveners using mercury as the example chemical, the cremation industry, the EPA and the DEP all understood that the exposure pathways as presented at the June 23 meeting by the interveners were theoretically possible and, therefore, they proceeded to conduct tests and collect hard data to determine if the exposure point concentrations, that is, the amount of hazardous material that someone in the area would be actually in contact with, to determine if those exposure point concentrations which would result were of concern. They demonstrated that they were not. It is no coincidence that the DEP has ceased to regulate air emissions at crematories. Such deregulation is not a common occurrence. Due to economic and political pressures, the DEP rarely deregulates sources from requiring permits. Doing so opens up the DEP to criticism from citizen groups claiming that deregulation is a form of back sliding and will harm humans and the environment. Nonetheless, this is what the DEP has done because the test data has conclusively demonstrated that the human exposures from the air emissions from crematories were insignificant.
And, actually, the test data is even better than this implies. The DEP Air Bureau regulates approximately 860 air pollutants and has determined allowable outdoor property line concentrations for most of them. The Federal Occupational Safety and Health Association also regulates hundreds of chemicals and for each has determined allowable indoor air quality concentrations. These are based on exposures lasting eight hours a day, five days a week, for thirty years. Neither agency has set zero as the allowable concentration for mercury reflecting the reality that some concentrations of chemicals is inevitable in our society and that exposures to concentrations below established risk based concentrations are therefore acceptable.
Still looking at mercury, the DEP’s acceptable property line concentration limit – that is, its acceptable exposure point concentration is two micrograms per cubic meter or .002 milligrams per cubic meter. The OSHA indoor air quality concentration is .1 milligrams per cubic meter based again on a continuous eight hour exposure. Thus, the DEP’s outdoor worst case limit is 50 times less than the indoor limit. Using the data previously provided to you for mercury emissions, from the equipment used at this crematory, Leete-Stevens easily meets the limit at the property line. In addition, using the data provided for mercury from this crematory equipment, the mercury concentration right at the stack exit is less than the indoor OSHA limit for mercury. Leete-Stevens could, theoretically, vent the crematory exhaust back into the building and comply with OSHA’s indoor limit for mercury. This isn’t feasible from a practical standpoint because of the temperatures but from a hazardous materials exposure, it would be quite acceptable.
As described, knowing exposure point concentrations is an essential consideration in evaluating risk. The only exposure point concentration the intervener presented were again theoretical and taken not from any site data but rather from the DEP’s remediation standard regulations. Dr. Miller assumed one gram of mercury was released per body cremated although he honestly stated that he did not know what the actual concentration of mercury would be. And he used the RSR exposure point concentrations to try to shock you with large calculated volumes of theoretically polluted soil, ground water and surface water. Forgetting that the test data demonstrates the actual quantity of mercury released during a cremation is less than half of what Dr. Miller assumed, if we accept the one gram, what he actually said was that 350,000 kilograms of soil could – this is based on an assumption that there’s no dispersion of the off gas to the stack – it could raise the mercury concentrations of that quantity of soil to a concentration which meets the DEP’s residential exposure criteria. It isn’t beyond it. It meets it. And this is a risk based concentration that is in itself conservative because it assumes that a ten kilogram child will eat two-tenths of a gram of soil every day of the year for five years. This is a very conservative exposure assumption especially in New England where you have bad weather, frozen soil conditions, and you’re not going to have any child out in the environment eating any quantity of soil three hundred and sixty five days a year.
The intervener’s projections of large volumes of ground water or surface water being polluted are also derived following the same train of logic and are, if anything, more flawed in the application and data.
In summary, actual test data provides clear evidence that emissions from cremations are below risk based thresholds and common sense tells us that spills of corpses, either before or after cremation, will not go unnoticed like a chemical spill at a chemical plant and result in releases to the ground water and the surface water. The hard evidence, the data that has been generated by EPA and DEP and others, the hard evidence overwhelmingly demonstrates that cremation provides a clear benefit to society at no discernible risk. Thank you.
Attorney Fahey: I don’t know if you want to ask questions now or you want to do it at a different time. I’ve got one more witness.
Chairman DiPace: No. Go ahead with the witness.
Attorney Fahey: Bob Pfeifer also was introduced and testified at the last hearing and he’s going to give testimony in rebuttal of the testimony that was offered not in person but by letter by Peter Marcelli which was introduced by one of the members of the Abranowicz family. Bob.
Bob Pfeifer: Good evening Chairman and members of the Enfield Planning and Zoning Commission. For the record, my name is Robert Pfeifer, Jr. I’m a general certified real estate appraiser in the State of Connecticut and Vice President of Appraisal Resources of Connecticut located at 104 Main Street in Manchester. I previously provided a document that included my qualifications. They are not included within this document.
As stated at the previous public hearing, I was engaged by Attorney Tom Fahey of the lawn firm of Fahey, Landolina & Associates to determine the impact, if any, of the Leete-Stevens Funeral Home and Crematory and, more specifically, the operating 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 approximately eight years. As previously cited, it should be noted that I have appraised Leete-Stevens Funeral Home as well as other funeral homes with and without operating crematories. I have been a practicing appraiser and consultant for twenty-three years.
In an effort to determine the valuation impact of the crematory, if any, on any nearby residential dwellings, a survey of recently sold properties in the general vicinity of the funeral home was conducted. These sales were compared to transactions of similar residential dwellings sold but located outside of the immediate area of the funeral home within competing neighborhoods. This is considered to provide the most meaningful insight as to the potential valuation impact the operating crematory has on any of the surrounding residential dwellings. As noted at the last public hearing, I stated I had reviewed one hundred thirty-four single family dwelling sales that sold over the past year within the Town of Enfield. As I had concluded at the previous meeting, my client has indicated that the dwellings that were cited – fourteen were located within close proximity to the funeral home and the operating crematory. These fourteen sales were compared to the remaining sales and clearly to me as an appraiser with twenty-three years of experience, there is no diminution or decrease in value as a result of the operating crematory.
Further analysis was conducted since that last public hearing. I reviewed several sales of single-family dwellings which occurred within the past year in close proximity and these sales were compared to other single family dwelling sales with comparable locations with the exception of the additional sales not situated within close proximity to the crematory. A table of these sales is provided for your review and attached to this document. The first table provides a summary of sales that are located within close proximity to the crematory. It lists the location, the sale price, the sale date, the house style, the gross living area, basement, the age, garage, room count, additional features and a price per square foot of gross living area which is essentially the sale price divided by the gross living area. Table two provides a summary of another large group of transactions. These are very comparable to the first set which are located within close proximity to the crematory. There are approximately, I believe, fourteen transactions here. It goes through the same analysis and shows you the same factual data and I provided an average sale price, an average gross living area, an average price per square foot gross living area for both groups of transactions. The first group within close proximity to the funeral home indicates an average sale price of $179,000 plus. The second group not located within close proximity to the crematory actual shows an average sale price of $171,000 plus or minus. I believe these groups of transactions clearly show and demonstrate that there is no diminution in value, decrease in value, with the homes that are located within close proximity to this operating crematory.
Also, I had noted at the last public hearing that I did review the Enfield Assessor’s records and there has been no reductions in the assessment of any houses located within close proximity to the funeral home.
Lastly, I was requested by Attorney Tom Fahey to review and critique two appraisal reports prepared by Peter Marcelli Company of properties located at 58 South Road and 52 South Road in Enfield. The appraisal reports were conducted by Mr. Peter Marcelli dated May 30, 2000 with an effective date of May 27, 2000. These two appraisal reports prepared by Mr. Marcelli do not adhere to the basic minimum standards as dictated by the Uniform Standards of Professional Appraisal Practice also known as Usepath now recognized throughout the United States as the accepted standard of appraisal practice. The two appraisal reports do not provide any adequate description of the properties being appraised, the property rights being appraised, the type of reports that were provided which are all required by the Uniform Standards of Practice. They clearly show a severe lack of knowledge of the current minimum appraisal standards required by law. The appraisal reports would, without hesitation, be rejected by any financial institution for failure to meet minimum appraisal standards as dictated by Usepath. I have been employed as a real estate appraiser for twenty-three years and during those twenty-three years a large concentration of my work is done for lending institutions. This appraisal that was prepared by Marcelli Company would never be accepted by a lending institution. Neither report indicates any data to support the valued conclusions provided. It simply states very briefly a very poor description of the properties. There is not a single comparable sale provided within either report to substantiate the value conclusion with or without the crematory. More importantly, there is absolutely no support or justification for the conclusion that the operating crematory results in a twenty-percent loss of market value. That twenty percent loss of market value is a number that was just simply taken out of the air. There’s no information within that appraisal report that justifies a twenty-percent reduction. The only way to prove a twenty-percent reduction would be to find a sale located next to the crematory and another transaction that is essentially identical that’s not located next to the operating crematory and if that indicated that there was a twenty percent reduction or twenty percent differential, that would be your support and justification for indicating that there’s a reduction caused as a result of the operating crematory. That’s not the case.
Furthermore, it is interesting to note that Mr. Marcelli has been practicing real estate appraising and has been the Bloomfield Assessor for many years. According to an article in the Hartford Courant dated March 2, 2005, Mr. Marcelli lost his state accreditation and was placed on administrative leave. According to Mr. David Lavissiere, the Under Secretary for the State Office of Policy and Management and the Governmental Policy Division, Mr. Marcelli was no longer qualified to be an assessor in the State of Connecticut. Mr. Marcelli reportedly did not pass an examination to maintain his position as the Bloomfield Assessor. The article did not address Mr. Marcelli’s licensing status regarding his ability to appraise real estate. However, I had a discussion with two members of the State of Connecticut Appraisal Commission and they indicated that there was no information on record indicating Mr. Marcelli holds an appraisal license which is required in order to provide an opinion of value which is an appraisal. A photocopy of the article from the Hartford Courant archives is attached to this document.
In conclusion, the appraisal reports conducted by Mr. Marcelli are considered substandard.
I’m an MAI and I’m an SRA. I’m a member of the Appraisal Institute which is the largest appraisal organization in the world. An MAI designation is basically akin to your masters or your PHD in evaluation and counseling of commercial real estate whereas the SRA is a designation indicating my expertise in the valuation of residential real estate.
Attorney Fahey: How am I doing on my thirty minutes? Close?
Chairman DiPace: You’re over.
Attorney Fahey: The only other comment I have is in the packet that I gave you with my remarks, there is another two page report from Stan Dynia dated July, 2005. I didn’t read it with my remarks but it just expands on the comments that I made regarding slope issues and wetlands issues. At this point in time I will rest and at the end of the meeting I guess both Counsels are going to have an opportunity to summarize. Is that correct? Thank you, Mr. Chairman – unless you want to ask any questions.
Chairman DiPace: Any questions from the Commission?
Attorney David Baram: Mr. Chairman, if I may just inquire about the rules and I’m wondering if I could have a period of time to rebut some of the testimony, the expert testimony, that was presented. It wasn’t just a summation by the attorney. I wonder if I could have a short period of time to rebut and answer some of the testimony that was just put on since the rebuttal was not just a summation by the attorney but actually included some experts and some references to specific facts that I think need to be addressed. Whatever time you feel is appropriate, I would comply with but I would request even a short period of time.
Chairman DiPace: A half hour?
Attorney Baram: I think a lot less than that. What I’d like to do is address Attorney Fahey’s comments one by one real quickly.
I’m Attorney David Baram from Clayman, Tapper and Baram in Bloomfield. I represent the intervener.
Chairman DiPace: One second – real quick. Just so anybody is aware if they were not here for the last meeting, there is a sign up sheet if anybody wants to speak. We’re going to start from the sign up sheet which is over there. For anyone that does want to speak, please sign up. We’ll go down that list and after that list is done, then I’ll go to the public. This is strictly on new information. If anybody comes up and starts saying the same thing they did at the last hearing, I’m going to shut them off.
Attorney Baram: First, Mr. Fahey indicated that the matter was remanded because it was voidable and not void. That is correct. However, the court made it clear that this is to be as if we were first hearing a new hearing and so, therefore, when you view all the evidence, you are to view it as if nothing exists on the site.
Secondly, he said no new points were raised since 1998 and I beg to differ. I think that if you look at the record in 1998 and you look at expert testimony that we provided, the detail of the statutes, the regulations, the wetlands regulations, zoning and the like, you’ll see a tremendous difference. I think there’s been a much clearer and articulate explanation of the facts as well as pertains to your responsibilities in interpreting the regulations as it applies to this application.
He tried to indicate that the 500’ rule was sponsored by special interests. It was sponsored by a particular person who had a concern about crematories being too close to residential neighborhoods but what he didn’t tell you was during the appeal and the oral arguments before the Appellate Court, one of the justices asked him is this special legislation that was passed to try and circumvent the local regulations and he didn’t answer right away but when they asked does this affect anybody else other than Leete-Stevens, he said no. And the justice indicated in the opinion that it was special interest legislation.
The slope stipulation – it doesn’t matter whether it’s been twenty-five years or thirty years that the slope stipulation has been in effect but the major point is it has never been revoked. So it’s still pertinent today. It’s still part of the regulation, part of the application file and history. So the time that passes – I hope that none of us would say just because a commission did something five years ago or fifty years ago, it’s invalid. In order to make it invalid, it has to specifically be revoked by the Commission with authority.
With regard to the Wetlands Commission, there was a proposal before the Wetlands Commission. A number of the residents did go. I passed out as an exhibit this evening a long letter that I sent to the agent to try and articulate why this is a wetlands matter including the two letters from two professional engineering firms. The reason as I understand it that the Commission did not vote to take jurisdiction of this matter was because the Wetlands agent insisted that it is an existing building and as an existing building, there’s no jurisdiction and that flies in the face of what the court said. The court said this is on remand, it’s a new hearing, the local regulations apply. I gave you a copy of the Appellate decision so you don’t have to believe me. You don’t have to believe Attorney Fahey. You can come to your own conclusion. And I would argue that this information is absolutely correct. The interpretation is incorrect. It is and it does invoke wetlands jurisdiction.
With the two zones, I gave you the maps. You can judge for yourself. It is clear that on every map the property south of Lot #88 was zoned an R-88 zone. And your current map which has the whiteout which connected the lines based upon the 1990 revisions also connects the land south of Lot #88 as an R-88 zone. It’s not an R-33 zone. If you look at your own computer printouts, if you look at the application that was first submitted by Mr. Stevens, you’ll see that it was designated R-88.
In terms of the traffic, the fact that there is background noise from approaching traffic on the main thoroughfare and that it may exceed the noise presented by the crematory again is irrelevant because if you take one significant noise and add it to another significant noise, it’s twice the significant noise and it’s compounded. Plus there was no testimony about when the burns are occurring, when the operation is occurring. And if you look at your last approval, you’ll see that some of these burns are occurring in low traffic times.
With regard to hazardous waste, again this is clearly hazardous waste. Your regulations are what govern you and your regulations don’t depend upon a DEP standard or interpretation. You have your own definition and your own definition indicates that it includes incineration of waste and that waste has been defined in very specific terms about all the chemical emissions that occur. It is by any stretch of the imagination, by any definition, it is hazardous waste and, therefore, as hazardous waste, it can only go in an industrial zone. And, in fact, you have another crematory in Windsor that is in an industrial zone, as I understand it. So the fact that this is in a residential zone and to say that the fifteen hundred feet doesn’t apply is missing the point. You have to look at the use. If it’s hazardous waste, it belongs in an industrial zone and the 1,500’ as well as the 75’ to the aquifers apply.
In terms of the corrected application that Attorney Fahey indicated, please understand that when Mr. Stevens first submitted his application, he attempted to convince this Commission, quite successfully I must add, that a Connecticut General Statute, 19A-320 usurped or overrode your local zoning regulations. And that was the thrust of their argument. And, in fact, on the appeal in all the courts, superior and appellate courts, that was their primary argument as well – that they didn’t have to comply with local regulations. So I would suggest that the detail and the seriousness that you gave to the local regulations, both in terms of accessory use, hazardous use and the like, was not as attentive as, hopefully, it will be tonight because you understand that the local regulations do apply.
With regard to the engineering and Fuss & O’Neil, the issue is this. We have a use that emits toxic chemicals that have been known to affect health and it is within 100 feet of a residential neighborhood as determined by both courts. It’s within 14’ to 65’ based upon the testimony and the data that was submitted to you by the three different wells in proximity. So it is a serious impact and it does detriment the health and welfare of the neighborhood. And under the example that Mr. Miller gave you last time, we were talking about the potential of 140,000 acres.
Now, there was an issue about two buildings on a lot. Look at your own definitions. The word building in your regulations includes a definition of a house. Now, it’s true in a residential area you would not allow two houses to be on one lot. Just because it’s a funeral home allowed in a residential neighborhood doesn’t mean you can allow two buildings just because they’re not single-family homes. A building is defined as a house under the regulations because it provides shelter to human beings, animals and materials and, therefore, you can’t have two separate buildings on the same lot.
The issue of accessory use I’m going to go into in my summation but I will just briefly say at this point that accessory use, and you have all the legal arguments, the theories, the case law, the articles written by the three known legal authorities that was submitted last time, has to meet certain criteria. The burden of proof is on the applicant. There’s been no testimony during this hearing which has given you evidence or proof that this is a valid accessory use.
In terms of the petition for intervener, I would say that I believe based upon the case law and everything that I’ve read that this more than meets the requirements of an intervention and it’s not just on wetlands. You’ve heard extensive evidence and testimony about the toxic emissions from the crematories and that by itself clearly presents it within the ambit of being reasonably likely.
With regard to the experts that were called this evening, Mr. Stark – I would like to call Mr. Miller really quickly but before I do, I would like to make a couple of quick comments. And, that is, if you comply with your regulation 16-2.9 which talks about uses that have hazardous wastes, that invokes another set of regulations regarding site plan permitting and those site plans have to have five or six different studies associated with them that have to be submitted to staff and yourselves to review. Those studies, by the way, include climatic control. So when he says that we’re not taking into account the disbursement of these chemicals – well, this is private property. We don’t have a right to go on and conduct our own tests but you have a right to insist on those tests and if you invoke your regulations as you’re supposed to, this is available to you. You can require all the ground water tests, the aquifer tests, the bedrock tests, the climatic tests, the chemical emission tests. We don’t know what the chemical emissions are from that crematory today but you should know. The neighbors should know. The towns should know. And by not invoking those regulations, it’s a serious oversight in my opinion. So because we don’t have those tests, the whole application is defective in my mind. And just on that basis, you have every right to reject this application because it’s totally defective.
In terms of the mercury example, let me just say this. We’re not naïve here. Whether or not emissions meet a certain standard, we don’t know that because we don’t have all the test data. We do know that there are emissions. We do know that those emissions affect people in the surrounding neighborhood. The people in the surrounding neighborhood not only involve older people, senior citizens but young children because there’s a school in that neighborhood and many of the children walk by this crematory on a daily basis.
With regard to the appraisal, I would like to introduce the original appraisal because I don’t know what the member of the public who spoke, what he introduced. But these have all of Peter Marcelli’s credentials and they are significant. He’s recognized as an expert in every single court in the State of Connecticut. He’s testified in thousands of cases. He is of great repute throughout the state because of his knowledge. And let me just say this because I come from Bloomfield. I used to be the Mayor of Bloomfield and I know Peter intimately. Peter was one of the first grand assessors of this state. He was grandfathered because they didn’t have testing when he was first made an assessor and he’s been grandfathered ever since. Unfortunately, he didn’t realize that he had to redo or resubmit the certification under the grandfather clause. He misunderstood so he became decertified as a result and Bloomfield just went through a reevaluation which has caused havoc. Because the grand list had to be certified, that raised issues about Peter’s certification. But the main point is at the time that these appraisals were done, Peter was fully certified. Peter gave a description of the properties and he was prepared to testify at that time on why he came to the conclusions he did. The certify that the appraiser introduced by Attorney Fahey did not refute these appraisals. He did not do his own appraisal. He has given you generic information and the information that he’s given you is just raw data statistics. The same criticism that he leveled against Mr. Marcelli for not describing the property – he hasn’t described the neighborhood. He hasn’t given you the details that would be necessary for you to compare whether the $179,000 average versus the $171,000 average is comparing apples to apples or is it apples to orange because we don’t know the descriptive nature of these two neighborhoods and he hasn’t done that kind of an analysis. So the study itself has the same flaws that he would criticize Mr. Marcelli and I’m just going to hand this in for a second.
I would just like to introduce Mr. Miller, give him two or three minutes to respond to the specific testimony about the chemical emissions.
Dr. Kevin Miller: For the record, my name is Dr. Kevin Miller. Just a couple of quick comments regarding risk in general – risk is kind of a funny animal. If you’re in a position to accept risk, we all drove here tonight. We accepted a certain amount of risk just to drive here tonight. If we work in a workplace, we accept a certain amount of risk to work, to have that job. So I think where I’m going with that is that to compare environmental exposure due to chemicals in your residence versus your work place, which OSHA standards are, I think is not an accurate comparison. If you want to work next to a degreaser in a manufacturing plant, you accept a certain amount of risk for that so OSHA standards are not strictly risk based. They are economic based in addition. If you’re living in a home near a crematorium, you have no choice. So the level of risk, I think, the bar is raised dramatically.
The second thing regarding risk is permits. Just because something is permitted doesn’t necessarily mean there’s no risk. I’ll give you an example. We chlorinate water because we want to eliminate risk in bacteria. Well, it is well known that if you chlorinate water, you will have what are called tryhelamethanes in water such as chloroform. If you do a risk assessment based upon the normal amount of chloroform in a public water system, there is risk. But we accept a higher standard because of the possibility of bacteria in water. So I guess it’s a choice. You can drink that water or not. Again, if you’re living next to anything that is causing you risk that you’re not accepting by yourself, I think it’s probably not a fair comparison to say that just because something is OSHA standards or it is permitted, that there’s no risk.
The other thing is I would say that I think maybe I was accused of being a little irresponsible and maybe using a shock factor here tonight. I would say to you this that after reviewing the literature, it’s not clear to me how much mercury really is emitted from these crematories. It’s not clear. And I don’t think it’s clear to the DEP, the Department of Health or anybody else. All I’m saying to you tonight is that if you’re not sure, it’s prudent to follow at least state standards for hazardous wastes. And I think that my testimony will reflect from the last time I was here that in Great Britain there were soil concentrations that exceeded the Connecticut plumobility criteria. And just as a refresher, that criteria means that there’s the potential for mercury to reach the ground water. Experts said there was no data offered.
Chairman DiPace: This is old – what you’re saying now. You’re just repeating what you said the last time. New testimony tonight.
Dr. Miller: Fine, I thought I was rebutting. I guess that will do it.
Attorney Baram: Mr. Chairman, I thank you very much for that privilege.
Chairman DiPace: Okay, the first person on the list I have is Joan Rutherford from Manchester, Connecticut.
Joan Rutherford: I’m Joan Rutherford, 48 High Street, Manchester, Connecticut. I have never spoken here and I have not been at one of the other meetings so I don’t know if anything is going to be repeated because for me it’s all new. So what I’m saying is that this Planning and Zoning is about to set a precedent, a statewide precedent that might become a national precedent. Okay. We previously don’t have crematories in residential areas. There is obviously a large opposition to it. People in Enfield who would be in favor or it are the people that don’t live in that neighborhood. Now, people are opposed to a lot of commercial development in Enfield crowding out their residences. Do we want to set a precedent and why are we setting a precedent? Is this the only crematory in Enfield? And why are we allowing it to be? Are there other funeral homes that take in people who want to be cremated and send them over here? Is this crematory only used for deceased Enfield residents?
My father died three years ago. My mother died in 1996. That was in Manchester and in Wethersfield. Where were they actually cremated? Did my funeral home send them here? Maybe not because of the date but where are all these bodies coming from? Do you have any accountability from this crematory how many bodies have come and gone, what volume of ashes resulted from it and out of that total amount of ashes, how many of them were returned to the families? And, where were those ashes put? Can you picture or can they draw a picture of the space that all those ashes took up? Have they taken readings of temperatures and gases in the air and various locations in Enfield since this cremation process has started here? Probably not. And I would ask you to find out what I could not find out – who is the regulatory agency that puts down the standards, puts down the controls and is the watch dog for all of the ash. We can’t call it human waste because humans are not a waste. This is matter and all matter remains on earth. It is not going to go away. The quantity is not going to go away. Do we know how these ashes are disposed of? Do you have a daily or weekly report from this crematory saying X number of bodies equals X amount of pounds and space of ashes and where those ashes were? On a level about geneology, do you know who these people were that were cremated and do you have a record like you would have that would accompany their death certificate that shows where there ashes went like you would have a cemetery plot. And I can tell you the answer is probably no because I can tell you my family has a cemetery plot up in Sleepy Hollow in Concord. And they don’t allow you to scatter ashes but guess what? My mother and my aunt have been scattered on that gravesite. Did anyone see us? No. How many other ashes have been scattered in that area. I have relatives that have been scattered in a cemetery in Glastonbury. We don’t know what’s happening with them. Do we know that these ashes aren’t being scattered in the middle of the night. That’s when I would do it unless I had a really good disguise and I was –
Chairman DiPace: You do know these are being recorded, correct?
Ms. Rutherford: So that’s fine. I always stand up for my behavior. I have broad shoulders and I do take the knocks for my behavior. I’m a responsible person but what I’m saying is this is trying to set a precedent. I come from Manchester. I don’t want to think that bodies coming from Manchester being brought here, cremated and causing a problem for Enfield residents making their life and their environment hazardous to their health. And no one is doing testing. No one is recording how many illnesses, how many headaches on what regular basis are happening. The air is important. We have a lot of allergies and we have a lot of side effects from it and this is not being controlled. So I can tell you that the Department of Public Health is not involved in the enforcement to control the anything of it. It lies with the Planning and Zoning and that’s what they said to date. So each and every one of you people on Planning and Zoning, your names are going to go down in infamy on your decision on this that you may be turning Enfield into Ashfield. What is happening? Do you really know the ramifications? And my question is how much money is this crematory bringing in? And out of that money, how much is adding to your tax base? What is the purpose of you being encouraged to do this? Is it money coming in? I mean our town in Manchester, we’re looking for something to add to the tax base, just about anything they’ll buy into. I don’t imagine –
Chairman DiPace: That’s a shame because, unfortunately, we cannot consider monetary value on something when it comes before Planning and Zoning.
Ms. Rutherford: Right, but the thing is if they’re doing a business, they are generating revenue and they are going to be taxed on those revenues. And the thing is how many crematories in the state are doing this in a residential area and there aren’t any so we’re talking precedent. They said previously there had been no violations. Well, the reason there have been no violations is we don’t have any standards, we don’t have anyone enforcing it, we don’t have anybody taking the town to violations because there is no watch dog. There is no data. How long are we going to have to wait before it becomes really evident? Are we going to have to wait until we have another 25 Sigourney Street in Hartford where that state building is so contaminated?
Chairman DiPace: I’m very sorry that you weren’t here for the last meeting but this is a continuation and at the last hearing, time was regulated as far as how much time people get to speak. I have a full audience here of people that want to speak so if you can wrap it up in the next minute. You’re over and I really need to –
Ms. Rutherford: I’m sorry. I didn’t know what the time limit was but this definitely reminds me of Savannah, Georgia in the 1950’s. That tells you that I’m old but it doesn’t matter. Savannah, Georgia reeked. You breathed it, you smelled it, you ate it – it was a paper mill. And you know they ended up having to clean that up and it took a long time and it took a lot of money and that is what Enfield is looking forward to. I’m sorry that you’re making your people so miserable. You’re robbing them of their quiet enjoyment in their homes. And they have to have temperature, gases. They have to have sickness and that’s documented. And if you want to turn your back on it, your names will become famous. Thank you.
Chairman DiPace: Thank you. Again, I’m going to reiterate the same as the last hearing. There will be a five-minute time limit on people that come up to speak due to the number of people that are here that do want to speak. The next person on the list is Robert Messenger.
Robert Messenger: Good evening. My name is Robert Messenger and I live at 14 King Court in Enfield. I’m probably in the minority. I just want to make three points. I wanted to make two until I heard the attorney over here. He insisted every building is a house. I’ve got a garage. It provides me shelter and an interminable amount of mice shelter which I guess makes them animals. And I also have a shed that holds a tractor which provides me shelter and some more mice. So I guess that two of those buildings have to go by his interpretation of the regulations. He insists they are houses although I don’t believe that they are.
In 1997, I lost my father. I brought him over to Leete-Stevens and at his request the body was cremated. It was taken down to Carmen Funeral Home in Windsor and it added two days to the whole process plus some expense for transporting the body back and forth. At the time, it made things a whole lot harder on my mother because I don’t know how others deal with it but in my family we begin to heal from the loss of somebody at the time that the body is disposed of whether it is disposed of by cremation, burial in the ground or burial of the cremains. It made it very hard and it was terrible on her for two more days that didn’t have to be. In 2000 my mother died. Again I went to Leete-Stevens. Leete-Stevens at that time had the crematorium. We had the wake and the next morning the cremains were ready and we took them out to Canton, out to the family plot and put the cremains in the ground which might give this other woman some ease of thinking of where they went. They went to property along side my father’s and it just made everything so much easier having that available to us. I would hope that you would bear that in mind. I’m hoping myself that when the time comes to have my body cremated – I’ve been a resident of Enfield since I was thirteen years old and I see no reason to remove me to some other strange town to have my body cremated. It’s an increase in expense and it’s an inconvenience to the people that have to deal with the loss as myself and it’s really not fair to me or my family.
The third thing is these people are worried about noise and they are worried about pollution. I drove by there today and across the street they are growing tobacco and they are growing corn. I was an employee of a farm for ten years and when you do that, the tractors emit quite a bit of noise – I would assume more than the crematorium. There is definitely diesel smoke which is a proven carcinogen and the plants are all sprayed with chemicals that we know get into the water system because where they have been done for years, they have had to install water systems or they’ve had to provide bottled water. And, yet, none of this is a concern to them. I would think I would look a little closer beyond the crematorium if you were worried about those things.
Anyway, thank you, gentlemen. I appreciate your putting up with me and that is all I wanted to say.
Chairman DiPace: Thank you. The next one on the list is Lois Sabattini.
Lois Sabattini: I am Lois Sabattini. I’ve lived in Enfield for over fifty years and as a repeat of this gentleman, I want to be cremated. My two boys want to be cremated. And I happened to be at Sofia’s funeral Saturday –
Chairman DiPace: Would you state your street address for the record.
Lois Sabattini: 20 Wheeler Drive, Enfield. I was at Sofia’s funeral Saturday and there was about a hundred people. I asked Mr. Stevens how the crematory was going. He said Lois, do you smell anything. I said no. Do you hear anything? I said no. And my car was parked up in back. My air conditioner makes more noise than the crematory. Thank you.
Chairman DiPace: Donna Szewzak.
Donna Szewzak: I know I have spoken before but I do take offense to the fact that they say that no new information has been brought up since 1998. In 1998 we came before you. We had no idea we would hear it or smell it. That concept did not even cross our minds. When it ever started operating and we could hear it, we were stunned. Over the past seven years I could not sit up here and say I actually have smelled it. On Tuesday I did go down and it wasn’t even operating. I don’t know if they were cleaning the unit or what. It has a pungent smell of incense. It’s like a foul incense smell that you can get as it wastes over. I don’t think it’s fair to impose a risk upon a residential neighborhood. Kevin Miller talked and he talked about you choose a risk. Well, it seems that the business has chosen that this neighborhood should have this risk imposed upon them. And I realize that it’s convenient for people. I realize that everybody does a good job at the Leete-Stevens Funeral Home. |