CITY OF NORWALK
COMMON COUNCIL ORDINANCE COMMITTEE
SEPTEMBER 20, 2005

ATTENDANCE: Michael Coffey, Richard McQuaid, Peter Wien,
Kevin Poruban, Douglas Sutton

OTHER: Katherine Lasberg, Assistant Corporation Counsel

CALL TO ORDER

Mr. Coffey called the meeting to order at 7:40 p.m.

ROLL CALL

Mr. Coffey took the roll call and announced there was a quorum.

Mr. Coffey stated that the agenda would be taken out of order to allow an out of town speaker to address the committee. He recognized Attorney Scott Sawyer who gave testimony to the state regarding the statute of eminent domain.

Attorney Sawyer thanked Mr. Coffey and the Ordinance Committee members for inviting him tonight. He said that when he speaks to groups, they are usually not interested in a legal dissertation. He has spoken to the State Legislature about crafting laws to curtail use of eminent domain for economic development. He went on to say he was present on behalf of his clients in New London, Norwalk and other cities he represented. He said he was asked to appear by his clients to address the curtailing of eminent domain for economic development. He noted he could provide answers from a homeowners and developer’s perspective. He further spoke about circumstances he experienced where 90-acres of land was involved and was taken as eminent domain. He pointed out there were many ways to formulate plans to curtail that type of thing happening. He said that through discussions, he found there were more creative ways to develop cities that would have an impact without taking someone’s property, by keeping the character of the city alive and considering other factors.

Attorney Sawyer continued and said he has represented Trumbull homeowners since 1967. He shared some background information regarding an eminent domain case where testimony was give today on C-SPAN. He noted the senate panel was favorable to the concept of property ownership with emphasis on protecting resident’s homes from being taken by developers. He expressed there is an “ugly side” of just arbitrarily taking someone’s property. He spoke about the Supreme Court stance that accepted a petition and was argued in February. And by a 4 to 3 decision, the majority ruled there was very little law and it was stated the matter would probably punt back to the legislature. He pointed out that cities are allowed to provide safety measures for residents that would disallow the taking of homes. He further stressed that they needed to make sure that A-property doesn’t go to B-property. He further spoke about the fact that if people express they want to stay in their homes, they are sometimes labeled as being hysterical. But the response should be that people should be safe in their homes and protected against developers. He referred to the case in New London and the negative publicity it generated that has been disastrous, noting that business owners have suffered, but the elderly, minorities and the poor are most affected by takings. He stated that for the New London case, they were now looking at five years of development, but nothing has happened yet. And it will be another five to ten years for what they claim they will be developing. The essence is, that if a fight is put up, it stalls development.

Attorney Sawyer mentioned that there is a question whether it is appropriate to engage in the topic as it pertains to Norwalk. He said he disagreed with Corporation Counsel that they should wait until the Maritime Motors case is resolved; he didn’t feel this was a good move, because in the meantime, nothing will be developed. So the time is now to discuss eminent domain. He stated that it was time for the Common Council to step forward and remove any issues off the table that surround eminent domain. He cited Justice Stevens view point regarding eminent domain. He said that basically, eminent domain boils down to two concepts:
1. Intangible – refers to things that lead up to a taking and the effects on the community and the person. He noted that taking this kind of action is emasculating, insulting and incredibly ugly. i.e., a claimant in New London received her notice of a taking shortly after Thanksgiving.
He gave other examples of improper means where developers locked people out of buildings. The point being, not all developers act in an appropriate manner, but their excuse is that they are just trying to develop. But the means by which this is done is inexcusable.
2. Tangible - the idea is that the law is unsettled in the area of eminent domain and although more litigation is expected, he noted that the law is set up to allow developers to tiptoe around the subject. He felt that developers are really smart and he thought they could make do with what properties are available without resorting to eminent domain.
For instance, if you have a property in Connecticut being taken by eminent domain, he said it will be difficult to attract a Walgreen’s, CVS or a Ritz Carlton, noting that these types of establishments have been boycotted.

Attorney Sawyer summarized that according to the Supreme Court justices, if use of eminent domain is not curtailed in the state, it will continue to support formulated plans that don’t realize the promised benefits. The bottom line is that eminent domain relocates minorities, the elderly and the poor. It does not usually apply to people living in the suburbs. Overall, everyone aspires to own property, but again, when eminent domain enters the picture, people do suffer. And what ends up happening is that they will simply be doing work of big business and developers. Lastly, he said by curtailing use of eminent domain for economic developers, they will be doing Norwalk a favor, because they can develop without delays of decades spent through litigation.

Mr. Coffey spoke about Norwalk’s draft ordinance. He asked what his thoughts were on drafting a statute. Attorney Sawyer said the fact was, that there is a voluntary moratorium in place, this won’t slow down a case such as Maritime Motors, so the idea was that they should wait for a decision as it occurred in New London. But conflicts have surfaced with developers due to this.

Attorney Sawyer reiterated that now was the time to discuss the issue, whether they draft a one page document or 15 pages. The point is that whatever is drafted, it needs to be very clear as it pertains to language and scrutiny.

Mr. Bill Wren, a former council member said he resided at 67 Reed Avenue, Norwalk. He said he looked at the City of Milford ordinance and he believed the Common Council had the authority to draft an ordinance. He expressed that it was an important issue to take up. He read an excerpt of the Milford statute highlighting that if the project was privately owned or controlled, it has to be for a public purpose to take property by eminent domain. He relayed that there is a real problem with eminent domain, in that many developers’ projects are oversold by claiming it will result in a lot of jobs and increase the tax base. But often times, the promises don’t pan out. Although they sound good on paper, they aren’t really beneficial and the developer’s tactics of telling an owner that they either sell or their property will be taken is counterproductive. Overall, he said he supported the ordinance going forward in Norwalk, noting the issue goes across all party lines. He stressed that taking property was an abuse of municipal power that needed to be controlled.

Mr. Todd Bryant,23 Morgan Avenue, Norwalk said he was the President of the Norwalk Land Preservation Trust. He stated his interest in eminent domain was from a preservation standpoint. He noted that many properties taken are in old neighborhoods that embody the soul and character of the city. He said he discovered that court rulings regarding this issue have been ruled on consistently since 1964, such as the case of Berman vs. Parker. He further spoke about states that have changed their laws as they relate to eminent domain. He felt that eminent domain in some form would survive. He referred to some historic sites that have been affected by eminent domain, noting that all projects are required to submit alternatives. Overall, he believed that historic properties should be considered in any development scheme.

Council member Krummel - said he resided at 21 Littlefox Lane. He said he appreciated the committee for the opportunity of taking up the topic and moving forward because it’s a very important issue he highlighted as a “hot button issue”. He said he was upset at the use of terms to describe interest in the topic as hysterical and anti-business. He thought they were deplorable terms bought forward in a discussion that is important in the community. He stated that his interest was primarily how to protect a community that can be destroyed by thoughtless government activities. He stressed that elected officials should be involved to exercise their input as seen from a constituency point of view. He ended in saying that he hoped the draft would highlight these issues.

Council member Hilliard - stated he resided at 25 Chestnut Street. He congratulated the committee for providing this forum to the community , noting that the time is now to have this discussion. He didn’t think the discussion would impact current development going on in the city. And he felt it took courage for the committee to come forward, because public interest was key to obtain guidance on the matter. Overall, he said the time was right for discussion, especially to inform constituents what position city officials take on the matter. He thought eminent domain was being used more liberally to the disadvantage of the “little man”. He read an excerpt that the NAACP filed with the Supreme Court. It outlined that eminent domain would fall heavily upon minorities and the truly disadvantaged and would harm these groups that have been targeted for eminent domain in the past. And if permitted, these groups would be disproportionately affected by that power. He mentioned that since he lived in a heavily developed area in South Norwalk, there is a real concern of people being forced out. He felt that strong arm tactics were unnecessary. He ended in saying that he hoped the ordinance would eliminate that.

State Representative Joseph Mann stated that he was invited tonight. But he didn’t know he would be asked to answer any specific questions as they pertain to eminent domain. Mr. Coffey clarified that he was asked to come tonight, so they could find out about any action or bills were in the works by the State Legislature.

State Representative Mann said the session to address eminent domain would start in February and nothing will happen until then. He said that his advice to the Common Council was to wait, especially since he heard a host of issues that go beyond the taking of homes. He went on to say that he heard about the one page ordinance and he questioned how they could deal with the issues on just one page. Also, there has been a legislative research finding that talk about eminent domain and a lot of statutes outlining what they can or can’t do. He said when he saw it, he found 28 to 30 different statutes that relate to eminent domain. Overall, he felt it was better to proceed with caution and debate the issue some more to make sure what it is they are trying to fix. He further spoke to the matter of creating an ordinance and questioned why it needed to be done so fast. He said the biggest concern was that it is hard to fix something that isn’t completely understood. He reiterated there shouldn’t be hurry, because they need to be wary of creating a false security to people that something is fixed, when it really isn’t.

Mr. Coffey asked State Representative Mann about House Bill 5062 and if he was aware of it. State Representative Mann said there were several proposals out and right now, they don’t mean anything until they go into session.

Mr. Coffey asked if he brought any bills with him tonight regarding eminent domain and if of them were one page long. State Representative Mann said he didn’t bring any with him, pointing out again that the matter has not gone into session yet.

Mr. Coffey asked the impact of the moratorium on eminent domain. State Representative Mann said a moratorium was requested as a recommendation. He stressed once again, that the matter should be debated first and then they should go forward. He emphasized that numerous laws weren’t required on eminent domain, but again, he believed the matter would be voted on in legislative.

Mr. Coffey asked about his input regarding the ethics committee matter that he previously discussed with him. He asked if the state had a session on that legislation yet. State Representative Mann said he didn’t recall discussing the issue with him. However, he said he never suggested they wait for legislature on that matter.

Mr. Coffey read a letter from State Representative Cafaro who thanked the committee for proposing the ordinance as it relates to eminent domain. He stated there was strong support across the state that called for an immediate legislative session, that would address the issue that he believed would be beneficial to all involved. He highlighted the point that property should only be taken under strict standards and there should be restricted use of eminent domain.

Attorney John Luiso relayed that his experience with eminent domain began in 1985 when he found out that his father’s business was at risk of being affected by eminent domain and that the entire block was expected to be taken. But subsequently, the action was halted. He went on to cite a case in Stamford were they found they can’t take land and use it as perpetual fiefdom. He further spoke about the blight issue and said there used to be police power to use blight conditions to justify condemnation, but that is not the case anymore. So he felt the timing was perfect to take up this matter, since it is on the minds of homeowners and business owners. He mentioned the other aspect was that for the first time using a statute on the books, they were able to prevail and recover attorney fees in a Stamford case. But they nee to realize that at the end of the day, a developer will enter into a contract with a development agency, so they need to make sure that what is stated, is really done. At any rate there are questions of what legislature can and will do. The other point is compensation, in that compensation needs to be just. Lastly, he said the discussion on whether the ordinance was one page isn’t crucial; the important thing is to look at the words carefully that should be chosen wisely.

MINUTES – AUGUST , 2005

** MR. SUTTON MOVED TO ACCETP THE MINUTES
** MOTION PASSED WITH FOUR VOTES IN FAVOR AND ONE ABSTENTION (MR. McQUAID)

PUBLIC HEARING

a) Chapter 59A – Article II – Fair Housing Advisory Commission

Mr. Coffey asked if there was anyone present to speak on this matter.
Hearing none, the public hearing was closed.

b) Chapter 94 – Solid Waste, Collection and Disposal of

Mr. Coffey asked if there was anyone present to speak on this matter.
Hearing none, the public hearing was closed.

** MR. SUTTON MOVED TO SEND CHAPTER 59A – ARTICLE II – FAIR HOUSING ADVISORY COMMISSION TO THE COMMON COUNCIL
** MOTION PASSED UNANIMOUSLY

** MR. McQUAID MOVED TO SEND CHAPTER 94 – SOLID WASTE, COLLECTION AND DISPOSAL OF TO THE COMMON COUNCIL
** MOTION PASSED UNANIMOUSLY

NEW BUSINESS

a) Chapter 94 – Solid Waste, Collection and Disposal of

Mr. McQuaid recused himself from participating in this discussion.

Mr. Hal Alvord addressed the matter of solid waste. He said there were two purposes; one involved cleaning up. He explained that Norwalk had a 20 year contract that expires on December 31, 2008 and as the arrangement exists, he could not recommend renewal to CRA. The second change was to address garbage and trash that is spread around the streets and sidewalks, this is a result from trash being put in flimsy bags. So the change is that all trash will now be lidded in containers.

Mr. Coffey asked if this was a good thing. Mr. Alvord said yes, he explained that people put their trash out in bags and raccoons, rodents etc. get into it, resulting in garbage being strewn all over the city.

Mr. Coffey felt the statute was excellent and would improve the quality of life and make for a cleaner city. He asked about cost savings. Mr. Alvord said there wouldn’t be any cost savings because they don’t clean up the garbage. But he explained that when garbage becomes a problem, again, this attracts rodents.

Mr. Wien asked what type of covered containers they would be. Mr. Alvord said they wouldn’t be the locking type lids. The intention is to have 32 gallon containers with a lid that pops.

Mr. Wien said he noticed that when trash is picked up, the lids end up blowing away by the next morning, causing damage sometimes. Mr. Alvord said he couldn’t guarantee that the lids would be placed gently back on. But he did note that he tells his workers they should place the lid inside the trash can.

An unidentified person in the audience asked about signs being posted and fines enforced for littering. He stressed there was garbage everywhere and he didn’t feel the issue was adequately addressed. Mr. Alvord said this was a people problem, pointing out that most don’t understand the budget restraints in each department. And to enforce litter was difficult. He said only the police could write fines for littering, but there are tight constraints within the police department to address the matter; although the Mayor can appoint special constables to enforce it.

Mr. Alvord went on to say the problem is that you have to see the person throwing the litter to warrant a fine. But there aren’t enough people in the city to do all the things that need to get done enforcement wise.

It was asked if a sign was possible to post warning about littering. Mr. Alvord said he was reluctant to put up another sign, he felt there were enough signs now. But he said there were volunteer efforts by community programs that have proven to be helpful. He also said the plan was to have a special waste collections program and other efforts to help the situation.

Mr. McQuaid returned to the meeting.

b) Chapter 95A- Littering

Mr. Alvord said littering already existed in the code and it adds restrictions on hand bills. He pointed out that there is a significant hand bill trash issue in the city, i.e., many businesses might pay a student to post the hand bills on windshields. He said the problem was especially significant at Webster Lot. He further noted the problem can create liability to the city. But overall, cleanliness is an issue.

Mr. Coffey asked if there was a cost savings and where will the impact of this problem be noticed. Mr. Alvord said enforcement for illegal dumping needed to be defined to specify what items fall into that category. He said certain items are found dumped in the city all time and the cost to the city adds up to pick to retrieve the items. Mr. Coffey said the ordinance would address the quality of life matter then.

Mr. McQuaid asked if there was a separate ordinance for garbage. Mr. Alvord said that Chapter 95 covered garbage for the city, commercial, residential and the transfer station pick ups.

Mr. Poruban asked how the ordinance would affect the distribution of political hand bills, noting there is a right to free speech. Mr. Alvord said the ordinance wouldn’t affect the distribution of them. He said people can distribute handbills in many places, but they can’t put them where there might be a sign posted that indicates NO HANDBILLS. Again, this doesn’t prohibit political, religious handbills, but they must be distributed in a manner that protects a person’s right to privacy.

Mr. Coffey asked who would be the main enforcer for the appeals process as it pertains to illegal dumping. Mr. Alvord said it was a 2-step process:
a. handled administratively within the Parking Authority
b. handled through the police department

Chapter 94 and 95A scheduling of Public Hearing – there was discussion if the public hearing should be held within the next two week and be placed on the agenda for the October meeting.
** MR. McQUAID MOVED TO SCHEDULE A PUBLIC HEARING TO TAKE UP THE MATTER OF CHAPTER 94 AND 95A
** MOTION PASSED UNANIMOUSLY

It was further determined that a public hearing would be scheduled on October 12, 2005 for the trash ordinance.

OLD BUSINESS

a) Eminent Domain

Mr. McQuaid stated that he had a concern about how the meeting was handled tonight , in that some people were invited to speak, but the other side wasn’t represented. He felt the ordinance should have been drafted first and then a public hearing held. He said as far as the ordinance and the comments about the length of it, he thought it could always be revised as needed.

Mr. Coffey said during the break, he asked Ed Musante of the Redevelopment Agency if he wanted to speak, but he declined. As well as the other developers that were present. They said they would return next month for the public hearing.

Mr. Sutton said he thought tonight’s meeting was supposed to be an informational session for certain people to express their comments on the topic.

Mr. Coffey said the draft ordinance was based on the State of Washington and taxpayers groups that modeled their legislation. He said he gave Corporation Counsel back-up material of copies of the model language. Overall, he said it’s the quality of the content that makes the statute effective. He drove home the point that our State Representatives should at some point, address the important issue of eminent domain and be prepared to discuss any legislation pending. He said that most cities have taken on the topic of eminent domain. He noted that copies of proposed legislation will be sent in next month’s meeting packets, as well as other materials to read and review. Mr. Coffey referred to and read numerous articles he compiled regarding eminent domain.

Mr. Coffey read a letter submitted by Tim Sheehan who declined to comment on the proposed ordinance.

Mr. Poruban pointed out that according to the August minutes, there was discussion that they would hold tonight’s meeting with certain people addressing the topic. He also noted that for other cities ordinances mentioned, and the suggestion that they should follow them, he thought this should be looked at carefully, because those cities have a different infrastructure than Norwalk. Overall, he felt the topic needed continued discussion.

Mr. Wien agreed there needs to be more discussion. But he said he was glad they were moving forward.

** MR. WIEN MOVED THAT A PUBLIC HEARING BE SCHEDULED ON THE MATTER OF EMINENT DOMAIN
** MOTION PASSED UNANIMOUSLY

b) Ethics – No discussion.

ADJOURNMENT

** MR. COFFEY MADE A MOTION TO ADJOURN
** MOTION PASSED UNANIMOUSLY

The meeting adjourned at 10:30 p.m.

Respectfully submitted,

Diane Graham
Telesco Secretarial Services

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