Ms. Lisa F. Siegel
Hearing Officer
Docket Numbers FIC 2011-235 and FIC 2011-294
Freedom of Information Act Commission
18-20 Trinity Street
Hartford, CT 06106
September 18, 2011
Via Email
Dear Ms. Seigel:
The Town of Greenwich presented no witnesses and no testimony at the September 27, 2011 Freedom of Information Commission Hearing regarding Docket Numbers FIC 2011-294 and FIC 2011-235. It is my understanding from "A Citizen's Guide To The Freedom Of Information Commission", published by The Freedom of Information Commission, that
"The hearing will provide the ONLY opportunity to present evidence, and all evidence becomes part of the record of the hearing. Each party may testify, examine and cross-examine witnesses and offer documents as evidence. The presentation of evidence is followed by a brief argument on the law."
I have attached a hard-copy version of my testimony, which I ask be added to the file.
As I told you at the hearing, I am not an attorney, and I am not able to immediately discuss the law from my personal knowledge. You granted me the right to send you a follow-up discussion of the law, with a copy to Mr. Fox, which you stipulated you would take into consideration when making your decision to be forwarded to The Freedom of Information Commission.
I asked to see 845 specific documents the Town of Greenwich is required to have in its possession, and make available to the public, before it can discuss a site plan, or appropriate money, at a Board of Estimate and Taxation Meeting. These documents must be on file in the Town Clerk's Office, 101 Field Point Road (Greenwich Town Hall) pursuant to Federal, State and Municipal Statutes and Regulations.
I have asked the Town Clerk to produce the documents, but she has replied she has no knowledge of any of these 845 documents. The Town Attorney told you, as part of a discussion of the law, he believed the Town had possession of all of the requested documents, and he had told me if the documents I requested existed they could be found somewhere in the files of the Planning and Zoning Commission, or The Inland Wetlands and Waterways Commission.
As I understand the Freedom of Information Act, this response is neither factually correct nor legally sufficient.
If the Town maintains the documents somewhere other than The Town Clerk's Office, it must immediately produce them pursuant to The Town of Greenwich Open Records Policy (Attached). If The Town of Greenwich cannot locate the documents, Mr. Fox must tell me so, and he must tell me where I can appeal the denial.
I am appealing the denial to The Freedom of Information Commission as required by The Connecticut Freedom of Information Act, and I ask the Commission to rule that the Town of Greenwich has violated its own "Open Records Policy". I ask the commission to declare null and void all decisions made by all Public Agencies based on these 845 documents, each of which is required to be publicly available, and none of which the Town of Greenwich is able to produce. I also ask the Commission to impose a fine of $1000 on the custodian of each of the 845 documents.
If this discussion of the law requires specific citations, please advise.
Respectfully,
Bill Effros
Complainant
PS -- In his discussion of the law Mr. Fox introduced the notion that my complaint about "secret or unnoticed meetings" challenged the right of Mr. Tesei and Mr. Walko to "caucus" in a hallway prior to the BET meeting on March 31, 2011. As I tried to make clear in my testimony, my complaint is not about the Tesei/Walko meeting, it is solely about the
documents presented to the BET, BOE and RTM subsequent to the Tesei/Walko meeting.
The agenda for the March 31, 2011 BET meeting referenced a specific final site plan specifically priced at $28,815,000 as approved by The Planning and Zoning Commission pursuant to 845 documents necessary to approve a final site plan of this size for a municipal improvement located in a wetlands.
Mr. Tesei and Mr. Walko had every right to withdraw this site plan prior to the BET meeting with the approval of the Board of Education. This is not at issue.
Instead Mr. Tesei and Mr. Walko presented their own, brand new, $17,000,000 million site plan, without any public notice whatsoever.
In my complaint I have asked to see the 845 documents necessary to create, notice, budget, and permit, this secret $17,000,000 site plan. If, in fact, the required documents did not publicly exist prior to March 31, 2011, I have asked the Freedom of Information Commission to declare null and void all actions taken by BET, BOE, and RTM at all subsequent meetings based on these 845 secret or non-existent documents.
CC: Greenwich Town Attorney, Mr. John Wayne Fox
Bill Effros
41 Old Church Road
Greenwich, CT. 06830
Narrative For Freedom of Information Act Commission Hearing
Docket Number FIC 2011-235
September 27, 2011
Introduction
I am Bill Effros, the complainant in this case against the Town of
Greenwich. I am an adjacent property owner directly affected by the Town's
currently on-going construction of a 3-phase, fully funded, multimillion
dollar "Music Instruction Space and Auditorium" called “MISA.” --
"M"-"I"-"S"-"A".
Submission of Documents
I have attached "Appendix A" detailing 845 specific documents
referenced in the docket, and request "Appendix A" be formally admitted
into the record as the specific, enumerated request for documents that are the
basis of this complaint.
The Commission's rules require me to notify it within 30 days of first
learning of official actions taken in unnoticed “secret meetings.” The list I
have submitted contains 845 separate secret meeting complaints, all for
documents the town claims were in the files of The Planning and Zoning
Commission on March 31, 2011, but which the town cannot now produce. I
have attached two letters from the Town Attorney claiming these documents
can be found either in the files of the Planning and Zoning Commission, or
in the files of The Inland Wetlands and Watercourses Agency.
The specific documents I have requested are not currently in the
public files of either agency referenced by the Town Attorney.
Obviously, it is not possible for me to individually present 845
document requests, citing the legal requirement for each, in 20 minutes. The
requested documents include all notices, meetings, site plans, recorded votes
and minutes required by Greenwich Municipal Regulations, Army Corps of
Engineers Regulations, The Connecticut Environmental Protection Act, and
literally dozens of federal mandates stretching back to 1898, now commonly
known as "The Clean Water Act". I wish to formally submit for the record a
list of federal and state acts, amendments, mandates, and procedures
referenced to hereinafter as "The Clean Water Act".
I wish to formally submit for the record a portion of The Greenwich
Town Charter concerning municipal regulations adopted to conform with the
rules of the Army Corps of Engineers, The Connecticut Environmental
Protection Act, and various federal mandates commonly known as "The
Clean Water Act."
I wish to formally submit for the record checklists created by the
Greenwich Inland Wetlands And Watercourses Agency, and The Greenwich
Planning and Zoning Commission. As repeatedly stated by the Agency and
the Commission in their rules and regulations, all of the documents on the
checklists must be available to the public for 30 days before either agency
can schedule a required public meeting to review them. As repeatedly stated
by the Agency and the Commission, all of the documents on the checklists
are necessary, but not sufficient for site plan approval.
Underlying Discussion of Law
The Environmental Protection Agency was created in 1970 to enforce
all existing and future legislation in the United States, regulating all
activities with the potential to cause harm to the environment. Each state
was invited to pass its own conforming legislation if it wished to enforce
these federal environmental regulations on a local level. Connecticut passed
The Connecticut Environmental Policy Act in 1972 to enforce "The Clean
Water Act" within the State of Connecticut.
The Connecticut Freedom of Information Commission was created in
1975 to enforce the public notification provisions of documents created by
public agencies within the State of Connecticut, and to conform with the
Federal Freedom of Information Act of 1966 which covers only documents
created by Federal Agencies.
In Connecticut, federal environmental regulations are administered by
each of the 169 towns which are each required, pursuant to "The Clean Water
Act", to write and to strictly enforce municipal regulations conforming to all
federal and state legislation.
Each of the 845 documents I have requested is specifically required
by federal, state, and municipal acts, statutes, and regulations before any
project the size of MISA can commence. All of these documents must be
available to the public for at least 30 days prior to review by any public
agency. While some of these reviews can occur simultaneously, none can
occur without public notice.
If any of these 845 documents exist at all, the town has produced them
in "secret meetings", as defined by The Connecticut Freedom of Information
Act, and hidden them from public view.
In the State of Connecticut, pursuant to The Connecticut Environmental
Protection Act, The Connecticut Freedom of Information Act Commission is
the enforcement arm of the notice provision of "The Clean Water Act". The
FOIA Commission is required by "The Clean Water Act" to declare "null and
void" any environmental actions secretly taken without public notice by any
Connecticut State or Municipal Public Agency, and to order all work on such
actions to immediately cease and desist.
Complaint
On March 30, 2011, the Town of Greenwich Board of Estimate and
Taxation held a meeting requesting public comment on Final Site Plan PLPZ
2010 00408 and Special Permit PLPZ 2010 00409, for a $28.815 million high
school Music Instruction Space (MIS) and Auditorium (A) to be built in three
interlinked phases at 10 Hillside Rd, a 54.85 acre federally, state, and
municipally designated wetlands.
The dollar value of the project, and the size and location of the parcel
automatically trigger federal Clean Water Act requirements that supersede
State and Municipal regulations. Pursuant to Federal regulations, the project
cannot be divided into smaller, descrete "phases", to avoid federal review.
The following night, March 31, 2011, Republican First Selectman Peter
Tesei and Republican Board of Estimate and Taxation Chairman Stephen
Walko caucused in the hallway outside the BET meeting and agreed to change
the construction plan presented to the full Board, minutes later, without
revealing the switch to other members of the Board or to the public.
The BET unanimously appropriated $17 million, but only for partial
funding of a 2-Phase "Greenwich Performing Arts Center Auditorium," with
no mention or funding for the "Music Instruction Space" which had been
shown as part of the 3-phase $28.815 million MISA project in the site plans
presented as fully approved and permitted the night before. The $17 million
appropriated was insufficient to complete the Greenwich Performing Arts
Center Auditorium once started, and there was no completion bond
appropriation as required by Greenwich Municipal Code.
Remarkably, this new, radically different, 2-Phase site plan had the
same final site plan number as the 3-Phase plan, and the same special permit
number, however, the 845 documents required for public review are nowhere
to be found. I have asked to see the 845 documents required for public
review, certified to have been in the Planning and Zoning Commision Files
and publicly reviewed prior to the BET March 31, 2011 meeting at which a
$17 million budget for this 2-Phase site plan was approved. The Town has not
made that documentation available. That is what this complaint is about.
Final site plans cannot be changed without approval from The Planning
and Zoning Commission. Building permits for a final site plan cannot be
issued in the absence of proof of full funding for the entire project.
Before The Planning and Zoning Commission can approve a change to
a final site plan, it must ensure that the 845 documents I have requested are in
its files, available for review by any member of the public, for at least 30 days
prior to the public meeting at which The Planning and Zoning Commission
notifies all abutting property owners, by certified mail, it plans to consider
changes to a final site plan previously approved.
I am an abutting property owner listed on both the March 30, 2011
MISA site plan and the March 31, 2011 MISA site plan. I received no notice
of the meeting at which The Planning and Zoning Commission changed PLPZ
2010 00408 and PLPZ 2010 00409.
Greenwich Municipal Code requires a certified signature and date on
every page of every site plan submitted as a "Municipal Improvement" by a
Public Agency known as a "Building Committee". I am asking The FOIA
Commission to require "The MISA Building Committee" to produce all of the
certified site plan pages that have been hidden from public view, along with
all notices, notes, minutes, permits and voting records of the secret meetings
necessary to change the site plans.
I am also asking The FOIA Commission to declare null and void all
actions taken at all secret and unnoticed meetings, including, but not limited
to, the approval of changed site plans and permit applications.
I ask the Commission to impose a fine of $1000 per document on the
custodian of each hidden document.
I ask the Commission to petition Connecticut Superior Court to issue an
order to the Town of Greenwich to immediately "Cease and Desist" all work
on MISA as required by "The Clean Water Act" for knowing and intentional
disregard of the requirements for notices, hearings and documentation.
I can cite specific regulations requiring each of the 845 items requested
if the Commission wants detailed citations. I cannot cite them within a 20
minute time frame, but will provide the Commission with citations for any
item challenged by the Town of Greenwich.
Thank you.
=============================
Please send your comments, news tips and press releases to GreenwichRoundup@gmail.com
