CtPost Canal Fence etal

The City is engaged on several separate issues in the City that in part involve the area of land owned by the McCallum Enterprises or the Shelton Canal Co.

1. The City's Plan of Conservation & Development was recently updated. It has tasks laid before the Planning & Zoning Commission to accomplish such as updating subdivision regulations, maps, etc. In light of that PoC&D, the PZC has been examining areas that should be re-zoned to better reflect either current existing or future desired uses. One way this is being done is to change the zone to R1 in the downtown area where otherwise there could be significant impact on the viewshed of the Housatonic River Greenway. McCallum's property is within that zone change area.

2. The Federal Energy Regulatory Commission grants via license for the right of McCallum to take hydroelectric power away from the Housatonic River. In return for granting the license to take power from a public asset (the river is public), FERC requires a fee (based on the amount of power taken) and several other items called out in the license - notably providing public access to the river, and a fish ladder to allow their migration up river. McCallum has expressed concern that in light of significant residential development proposals in close proximity to their public access area, and the coming change in character from an industrial to residential setting, that they had concern of liability and safety due to increased use of the public access area of their private property, and sought to reduce the size of such area. They applied to FERC to modify the license and installed a new fence to delineate the area. This is in conflict with FERC's ruling that does not allow this. Although FERC over-rules state or local agencies, this is also in conflict with the City's PZC approval of use back when the Shelton hydro-electric plant was constructed in the mid 1980's. The City has issued the cease and desist order against McCallum to take down the fence. No local permit was sought to construct the fence (and in this case FERC has no ruling or change to McCallum's license that would allow them to overide seeking such a permit).

3. The fish ladder component of the FERC license has not been installed since being required under the license issued in the mid 1980's, but the deficiency hasn't been enforced by FERC either. In the license renewal process, FERC made known that they will be actively seeking the fish ladder installation, and McCallum estimated the installation of it would be a significant expense upon them. McCallum is thus seeking to modify the license to allow them to fill the portion of the canal which is non-contributory to their hydro-electric generation infrastructure, but was included in the acreage controlled by the license. Upon achieving granting of filling in the canal, the Shelton Canal Co. (a similar ownership entity to McCallum) has stated that their goal is to create land area for residential development, similar to the numerous applications occuring in their neighborhood. Such pursuit would involve applications to the Army Corps of Engineers, DEP for Water Quality permit, and local Inland Wetlands and PZC approvals - a long and expensive process.

The following article appeared in CtPost last week. I post for public access to the news (CtPost does not retain links for very long) alongside my comments for clarification of the report. Please visit their website to view the original content:
http://www.connpost.com/ci_11444959

Shelton: Take down that fence
By Kate RamunnISTAFF WRITER
Updated: 01/13/2009 11:29:45 PM EST

SHELTON -- The city has ordered McCallum Enterprises to take down the fence it erected several months ago that prevents residents from accessing land along the river that is supposed to be open to the public.

But the cease-and-desist order issued last week doesn't mean the fence is coming down any time soon, one of the company's owners said.

Zoning Administrator Rick Schultz issued the order last Thursday, giving McCallum 10 days to take down the fence, or face a lawsuit.

"We will not be taking down the fence as a result of the cease and desist," McCallum managing partner Joseph Szarmach said. "We believe they do not have jurisdiction in this case."

Szarmach's grandfather E.J. McCallum Jr. got the initial Planning and Zoning Commission approval in 1986 to run the hydroelectric plant at the Derby Dam. As part of that approval, the canal company agreed to "provide an adequate and acceptable location of access to the water on the Shelton side of the river for the fishing and boating public." But Szarmach, citing Hackett v. J.L.G. Properties, LLC, a Connecticut Supreme Court decision earlier this year, maintains that he doesn't need the city's blessing to put up the fence -- only the approval of the Federal Energy Regulatory Commission, which granted that permission last year.

++ The "acceptable location" component of the approval was and continues to be decided by FERC. FERC did recently modify the recreational area outlined in the license, but withdrew the approval shortly thereafter. ++

In Hackett, the Supreme Court ruled that the Federal Power Act pre-empts local zoning regulations, which Szarmach said means that the conditions the commission placed on the approval are not enforceable.

"Federal licenses are not regulated by local zoning officials," he said.

++ I agree with Mr. Szarmach on that point. FERC pre-empts both local and state decision making. However, as seen with the attempt by Broadwater Energy to install a liquid natural gas platform in the middle of Long Island Sound, FERC decisions can consider input from a variety of sources such at the Attorney General, or other government representatitves. ++

Commission member Leon J. Sylvester was the chairman at the time and said he remembers the hours of work that went into the agreement reached with McCallum.

"They made a deal of good faith with the Planning and Zoning Commission years ago, and now they're saying that doesn't count," he said.

"I don't believe that; I believe a deal is a deal.

"That fence is a sign telling people, 'you're not welcome,' and that's wrong and he needs to adjust that," Sylvester said.

++ Leon is correct that a lot of work goes into hammering out an agreement. Ensuring that the agreement is adhered to is where the process was lacking on a local level. The PZC at the time should have requested a public access easement recorded in the land records with the City of Shelton as a grantee. That would have trumped any FERC change in license. ++

McCallum also is in the process of suing the city and the commission over its recent actions that rezoned the Shelton Canal Co. property from R-4 to R-1.

++ The rezoning is a separate issue that occured as part of the tasks assigned the PZC in the PoC&D. ++

Szarmach had intended to build 24 townhouses on a 2.5-acre portion of the property in order to raise funds to pay for the $2 million fish ladder the state Department of Environmental Protection is requiring the company to install. But under the new zoning, only a couple of single family homes can be built there, rendering the value of the property worthless compared to the R-4 designation, he said.

++ The fish ladder is a requirement of the FERC license, though the CtDEP would like to see it accomplished. McCallum Enterprises has had consultants estimate the cost at $2million, and they have made the decision to try and convert under-utilized asset of land into more value (via various Federal, State and Local agency approvals) that can then be sold for development. ++

It was after the city rejected Szarmach's offer to sell it the land, and during the rezoning process, that the fence went up.

"We understand that they want our private property kept undeveloped as an amenity for the Canal Street developers and their new residents, and they will say and do anything to make that happen," Szarmach said. "The city of Shelton is once again trying to bully a private property owner -- this is standard procedure for them.

++ The public access reqd by FERC is for the public. Shelton, Derby, Valley, CT, USA - generally any public. It is not, nor ever would be, exclusive to nearby developers or new residents. ++

"It is apparent to us the City of Shelton is perfectly content to put our viable Shelton family business out of business to get a free city park," he said.

++ The area is not a City Park. It is privately owned land where public access is mandated by the FERC license - NOT the City of Shelton. The City recognizes the acreage as "managed" open space, similar in character to cemeteries or golf courses which are owners of land that will contribute to the open space character of the community. ++

"I'm not saying he shouldn't fight for his rights in court," Sylvester said, "but until he does that, that fence shouldn't be there.

"This should not be about the zoning issue," he said.

++ Leon is absolutely correct on those points. ++

"This is about an issue that has already been fairly decided -- it was fairly negotiated between the originator of the facility and the Planning and Zoning Commission.

"It was a fair deal for Mr. McCallum and for the city of Shelton," he said.

++ But, as was frequent 20yrs ago when Leon and others chaired the PZC, "deals" weren't always recorded on land records, fair or otherwise. ++

While FERC initially approved McCallum's application to alter the public area of the property -- and thus allowing it to put up the fence -- it later reversed that decision after the DEP appealed it.

Schultz said the city, represented by Assistant Corporation Counsel Ramon Sous, would work with the DEP to resolve the issue but would file a lawsuit if the fence hasn't been removed by Jan. 18.

"We are hoping the DEP will resolve this once and for all," Schultz said.

++ It may resolve the current barrier to public access issue, but overall there are many issues that intertwine with affect of effect which will take some time to reach resolution. ++