P&Z Considers Limits On Town Topsoil Transfers

By Andrew Gorosko

Planning and Zoning Commission (P&Z) members plan to more strictly define their proposed zoning rule changes, which would allow the town to transfer topsoil from one municipal property to another municipal property.

P&Z members have been considering making such a rule change, which would allow the town to move excess topsoil from the Grade 5/6 school construction site at Fairfield Hills to Newtown High School. That topsoil would be used for the reconstruction of high school athletic fields. A transfer of municipal topsoil would require that plans be submitted to P&Z detailing the nature of the project.

The town’s zoning regulations currently prohibit the transfer of topsoil from one site to another, except for the construction of artificial ponds.

The proposed zoning rule revision would keep in force the prohibition against moving topsoil from one privately-owned site to another privately-owned site. The topsoil transfer prohibition seeks to prevent an intra-town topsoil market from being created and potentially causing environmental harm.

P&Z Chairman Daniel Fogliano told P&Z members October 4 the wording of the proposed topsoil zoning rule change, which was the subject of a September 20 public hearing, may not have contained the proper language. The regulation proposal discussed on September 20 did not place a volume limit on how much topsoil the town could move from one site to another, Mr Fogliano pointed out.

He noted that state law allows municipalities to exempt themselves from the provisions of their own zoning regulations. It would, however, set a good example if the town complies with the zoning regulations, albeit modified, on topsoil transfer, he said.

The chairman said that a municipal topsoil transfer to the high school would benefit the community at large. At $22 per cubic yard delivered and unscreened, the 2,500 cubic yards of topsoil that would be transferred from the Grade 5/6 school site to the high school would be worth about $55,000.

Attorney Robert Fuller, who represents P&Z on land-use matters, has recommended that “some sort of limit be put on how much [soil] could be removed,” Mr Fogliano informed P&Z members.

The lawyer believes that the proposed zoning regulation changeaired at the September 20 public hearing is “too open-ended,” said P&Z member Lilla Dean. “I think we need to work on it a little more.”

“I think we need to be a little more definitive,” Mr Fogliano added.

“It’s going to come up again,” he said, noting that he expects that there will be future cases in which the town wants to transfer topsoil from one municipal site to another.

Mr Fogliano said the Grade 5/6 school site contained a layer of topsoil 18 inches deep. Applicable regulations require that at least a six-inch layer of topsoil remain on a site after a site’s final grading.  

 Of the need for volume limits on municipal topsoil transfer, Ms Dean said, “I just think you need to put some limits on it, even for the town.”

She recommended that the town also be limited to removing topsoil from only those portions of a site from which it is necessary to remove it, such as the areas that school buildings and parking lots occupy.

A significantly revised proposed regulation to allow municipal topsoil transfer may require that another public hearing be held to air the proposal, Mr Fogliano said.

P&Z member Robert Poulin suggested that the agency include language in its proposed regulation that would prohibit the transfer of any “contaminated” topsoil.

Such a prohibition would prevent a minor soil contamination problem at the soil’s point of origin from becoming a bigger soil contamination problem at the site to which the soil is transferred, he said.

First Selectman Herbert Rosenthal has endorsed exempting the town from the topsoil transfer prohibition.

It serves the public interest to have a valuable material, such as topsoil, transferred from one public property, where it is not needed, to another public property, where it is needed, the first selectman has said. Allowing a municipality to make such topsoil transfers is fundamentally different than allowing a private developer to make topsoil transfers from one private property to another private property, he said.

Mr Rosenthal has said the zoning enforcement officer had informed him that topsoil was being taken off the Grade 5/6 school site and shipped to the high school, in violation of applicable zoning rules. The first selectman said he then informed school officials that such activity is prohibited by the zoning regulations. School officials then requested creation of a regulatory mechanism that would allow a topsoil transfer.

At the September public hearing, Kim Danziger, a local developer and builder, took exception with the proposal to exempt the town from the topsoil transfer prohibition. Mr Danziger said it would be discriminatory for the town to exempt itself from a regulation that applies to private developers.

School Superintendent John Reed has said that a government’s topsoil transfer for the public good is basically different than topsoil transfer by a private party.

The athletic fields behind the high school have deteriorated to a point where they are no longer playable, according to Dr Reed.

The field improvement project would result in more fields and better fields for football, soccer, lacrosse, field hockey, softball, and multiple uses. The athletic field improvement project would be completed by June 2002, with the fields in use by spring 2003.