A series of documents, emails and phone records obtained by BranfordSeven.com details a timeline that includes collusion of town officials and peer reviewers, doctored documents and misinformation to the law firm and engineering firm representing Costco.
The records show clearly that Diana Ross, who runs the Inland Wetlands Department, worked with Milone and McBroom, who was hired by the town to conduct a peer review of the Costco application, and Inland Wetlands Commission Daniel Shapiro to greatly edit the most recent peer review report; that she lied about when it was received, and delayed it’s production as she and Shapiro made sure their edits and changes were part of the filings, drastically changing the tone and direction of the analysis.
Milone and McBroom, meanwhile, willingly allowed and incorporated the changes, adding them to their reports and altering their findings, all while sending increasing costs and fees that Costco would be required to pay for.
The alterations that Milone and McBroom added to their reports at the request of Shapiro and Ross closely mirror the claims and statements made by the Branford Citizens for Responsible Development (BCRD), the group led by Penny Bellamy that is fighting the proposed Costco development.
Shapiro has started every Inland Wetland hearing speaking on the need to be transparent and ethical in their proceedings as the case may be appealed. To that end, he ruled, on his own, that the peer reviewer, Milone and McBroom, would not be allowed to discuss the Costco application with the applicant, and that all interactions must be done publicly or through Ross’ office.
Prior to the most recent Inland Wetlands Commission meeting, Milone and McBroom was working on the latest peer review document, which would include analysis of some modifications made by Costco as a result of collaboration with Land Tech, the expert hired by the Branford Land Trust.
Adding “average” Costco
Initial questions were raised regarding one particular item in the most recent report uploaded to the town website on March 9. In that filing, it states that “staff” requested Milone and McBroom look at a small? Costco proposal, and used the size of 143,000, the average size posted on their corporate website. If accurate as written, it would be an issue: “staff” had no right to actually commission the peer reviewer to do or research anything, as that was the stead of the full Commission.
Ross clearly knew this; when asked why she asked the peer reviewer to include it, she stated it was at the request of the Commission. When further questioned, she replied “read the transcripts.”
We found no such thing in the transcripts or meeting minutes.
On his own, chairman Shapiro prohibited the parties (peer review Milone and McBroom and the Applicant, Costco) from meeting or interacting at all, and that all communication be through Ross. As is typical for peer review, Costco would pay for the Peer review, with the peer review would analyze what Costco filed with the town.
At the February Inland Wetland meeting, it was clear that Costco was making headway with two of the other “experts” involved: LandTech, hired by the Branford Land Trust, and Milone and McBroom. In fact, in their most recent filing, Milone and McBroom state that they “have eliminated the prior comments and responses from this letter for clarity since the majority of those comments have now been adequately addressed. A few have not been adequately addressed, but in many instances, the design has evolved in such a manner that our concerns are much more narrowly focused at this point.”
Considering this, Costco believed the process with the peer review was near its conclusion.
Records show, however, that on February 26, Ross began raising new items, requesting analysis from Milone and McBroom that had never been raised at the Commission hearings outside of the BCRD, who was fighting the project. One of those items was making the building smaller, a proposal that opponents knew would essentially kill the project (the average size Costco on its corporate site includes all of their facilities, including former Price Clubs, which were about 120,000 square feet. In the last decade or so, Costco’s have been close to the proposed size in Branford, 158,000 square feet.)
Ross’s request is specific: “The Corporate Profile on line (attached) identifies that the average building size of a COSTCO is 143,800 square feet. If this building were reduced to the average size, with appropriate reduction in parking area, how far away could the disturbance from the wetland/ponds/watercourse on the eastern side of the site be moved to? It might be a significant improvement for a minor decrease in building size.”
On March 1, Darin Overton of Milone and McBroom responds with the obvious: a smaller building means less parking demands, and thus more room between a potential structure and wetlands.
The next day, March 2, Ross emails back, encouraging Overton to include the analysis as part of the peer review, despite it never having been raised by the Commission. She makes a judgement call she has little right to make, stating “Yes, this is the kind of thing I believe the commission expected as part of consideration of prudent and feasible alternatives, those that would propose less impact.”
Timeline of Peer Review
The initial notes on the peer review do not contain the look at a smaller facility Ross wanted added. At the request of Ross, Milone and McBroom actually send her their notes and outline for the peer review.
March 3 1:28 pm. Milone and McBroom sends notes for their peer review to Ross. He states “Don’t share too much though.”
Here is that document.
March 3 3:19 pm. Ross responds to peer review notes “Looks good so far. I used track changes and added a couple of comments/ questions.”
We could not find a copy of the document with the tracked changes in our request. It is possible it was faxed or sent in some other manner. In any event, Bill Root, of Milone and McBroom, actually wonders what else can be looked at as Ross pushes for more.
March 3 4:04 pm. “So far????? How much farther can I go?? Tough to substantiate indirect impacts. Still, if they don’t substantiate why it’s OK to decrease state/town-recommended buffers inside 100’ why do we have to substantiate why 40’ is better than 20 feet. Chat tomorrow…Bill.”
Amazingly, Ross answers that question by citing case law on how to be sure a denial of the application will hold up in court.
March 3 5:01 pm. Ross writes, in part, “Below is an excerpt from former Asst. AG Janet Brooks comments on this case. If an expert does not make the connection of an action to an impact then the commission cannot rely on that opinion when making a decision. In this case knowing that toxic chemicals would enter the wetland was not sufficient for denial. The expert needed to explain how the toxic chemicals impacted the physical characteristics of the wetland in a negative way. It is ridiculous because you know it is obvious, but most judges don’t seem to have a good background in science so you need to make it understandable for a fifth grader.”
Ross includes case River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57 (2004), then concludes her notes to Root stating that “The expert must explain how the discharge of chemicals causes harm to the wetlands in order for this reason to hold up in court.”
March 3 2:44 pm Milone and McBroom send a new invoice to Ross, to be paid for by Costco for continuing the peer review. The total is an additional $4,500, in additiona to the initial costs of $18,500.
March 7 4:06 pm Michele Carlson, of BL Companies, for Costco, emails a request for the peer review (she states she was told it would be ready Monday morning.)
March 7 4:19 pm "Michele, I spoke with Darin Overton about 15 minutes ago. It is being proofed and typed up, so it will be tomorrow morning. Diana"
Diana Ross then receives the peer review from Milone and McBroom, with her additions and edits included. With the peer review, Darin Overton actually offers to incorporate more of Ross comments into the document.
Here is that document.
March 7 4:54 pm Diana, a draft is attached for review. We will have to attach Bill’s photo log to this for the final. Let me know if you have any comments and I will incorporate them tomorrow and final the letter. Thanks. Darin L. Overton, P.E., Associate.
The next morning, March 8, Ross emails the document to Daniel Shapiro.
Soon after, Darin Overton emails Ross, asking if he should wait for her comments to add to the peer review.
March 8 10:51 AM "Diana, I read through the letter again last night and marked up some minor rewording and grammatical changes. Do you have any comments or should I final the letter? Darin"
Now, with the peer review in Ross’ hands already, Carlson (Costco) again requests the peer review in an email dated 11:28. The request is copied to town attorney Bill Aniskovich.
Two minutes later, Ross emails Milone and McBroom again, this time attaching a copy of the peer review with significant changes, handwritten notes and sections crossed out.
March 8 11:30 AM "Darin & Bill, We have read quickly through. Chairman Shapiro and I went over it and I included comments. You won’t be able to make sense of some of them, sort of scribbled. Statements to the IWC as to what their responsibility is during review crossed out. We want just the facts and expert (engineering, wetland) opinions. Please look over it and then give me a call so we can discuss. Thank you, Diana Ross."
Here is that document.
Ross then lies to Carlson, Aniskovich and others copied on the email looking for the peer review.
March 8 1:10 PM "Michelle, They are still working on it, so later today. Diana."
Carlson again asks for the peer review at 4:27 PM. Ten minutes later, Ross responds.
March 8 4:37 "Michele, I just spoke with Darin. He is finished with his portion so it will be typed up tomorrow morning. Bill Root was out all day and just got in the office, so he will be working tonight and hopefully finish before he leaves tonight. Unfortunately, it won’t be ready until tomorrow morning (I hope). Diana Ross"
That night, at 9:01 pm, Milone and McBroom email Ross to tell her they have incorporated all of the changes from her and Shapiro.
March 8 9:01 pm "Diana, I coordinated with Bill and we finished all the recommended changes. I also took all the opinion text out of my part of the document in an effort to just stick to the facts and leave the burden on the applicant to prove that their design works. Once complete and satisfactory information is provided then I guess there simply won’t be any further comments. I hope that we have picked up everything. I will be out of the office tomorrow, so I’m relying on our administrative staff to complete the letter and send it over to you. I’m hoping Bill will be in to assist. Darin L. Overton, P.E., Associate"
The next morning, Michele Carlson has still not been sent the peer review with Ross and Shapiro have had for almost 2 days.
3/9 10:45 "Hi Diana, Just checking to see if the Milone and MacBroom review letter is ready. On Monday, we had understood the letter was being typed and proofed for delivery yesterday. Your note last night indicates it was being typed and that additional content was being prepared for delivery today. Please let us know when we can expect to receive it. We look forward to receiving it as soon as it is available. Thank you, Michele."
At 11:36, Chairman Shapiro emails Ross, specifically requesting if the “revised” peer review is available.
March 9, 11:36 am. Shapiro to Ross: “Hows it going today? Anything new? Revised doc from Millone & McB?”
March 9, 3:42 pm. Final draft sent from Milone and McBroom to Ross.
Here is that document.
Soon after, Diana Ross sends the peer review to her assistant to be uploaded to the town website. It is dated March 9. Neither the March 7 peer review nor the notes sent to Ross a week earlier never get posted or shared with the applicant. Ross list of changes, the case law given to guide the review, nor any emails between the peer reviewer and Ross dealing with the changes by Ross and Shapiro are posted publicly.
At 4:23, Ross sends an email to one person letting her know the peer review is now available. That person is Penny Bellamy, the leader of the BCRD.
What are the changes?
Changes to the peer review as prompted by Ross and Shapiro fall into two categories: simple typo’s, and major changes to the review. To support this, we will post entire texts, both what was deleted, and what it was replaced with. We will not post every example here due to space and the complexity of the changes, but will do so in separate articles.
Example 1. – The changes from Shapiro and Ross add additional language to increase potential impacts downstream.
Original text: Inspection showed recent high water marks approximating the through capacity of the crossing. Increases in peak flow are likely to negatively impact the stability and safety of this crossing. The effect of volumetric increases are unknown since the design capacity of the crossing is unknown.
Altered Text: MMI observed recent high water marks approximating the through capacity of the bridge crossing. Any increases in peak flow rates are likely to negatively impact the stability and safety of this crossing as well as cause erosion that would contribute to sedimentation of the pond. The effects of volumetric increases are unknown since the design capacity of the crossing is unknown.
Example 2. – Shapiro and Ross specifically remove a suggestion to seek out the town attorneys opinion on a matter. The issue was potential alternatives: Costco had presented alternatives at the PDD level hearings, and MM was asking if those alternatives satisfy the Inland Wetlands look at possible alternatives. This is key, as the BCRD is arguing the building should be smaller.
Original text: MMI raised this topic under its review of direct wetland impacts from the proposed internal roadway and the selected box culvert crossing. At that time, the applicant responded that the internal roadway was a requirement of the PDD approval and also presented a variety of box store and parking arrangements very similar in configuration to the existing submittal. The Commission may wish to refer this matter to its Counsel as to whether these responses are adequate to comply with the statutory requirement.
Altered Text: Milone & MacBroom, Inc. (MMI) raised this topic under its review of direct wetland impacts from the proposed internal roadway and the selected box culvert crossing. At that time, the applicant responded that the internal roadway was a requirement of the planned development district (PDD) approval and also presented a variety of box store and parking arrangements very similar in configuration to the existing submittal. The commission must judge whether these responses are adequate to comply with the statutory requirement.
Example 3. – The changing of a single word changes the impact of the improvements Costco is making to wetlands. Consider changing the word “improved” to “conserved.”
Original text: North of the box culvert and west of the stream, several large trees will be impacted by construction of the retaining wall. This area constitutes one of the closest approaches to the wetland boundary. Wetland habitat will be improved by saving the two red maples here. These trees will better augment wetland functions and values here, especially wildlife habitat, if they are better protected by providing another 15 to 20 feet of riparian buffer. However, the catalpa tree at wet flag #89 is less valuable to the wetland. It can be removed.
Altered Text: North of the box culvert and west of the stream, several large trees will be impacted by construction of the retaining wall. This area constitutes one of the closest approaches to the wetland boundary. Wetland habitat will be conserved by saving the two red maples here. These trees will better augment wetland functions and values, especially wildlife habitat, if they are better protected by providing another 15 to 20 feet of riparian buffer. However, the catalpa tree at wetland flag 89 is less valuable to the wetland. It can be removed.
Example 4. – Multiple times, the altered document replaces “may” with “will likely” when referring to potential impacts.
Original text: The Engineering Reports indicate a reduction in contributory watershed to these two wetlands, which may have long-term, negative effects. For example, although most of the wetland plants are facultative (adapted to seasonal changes in hydrology), the loss of so much of the contributory watershed will shift the vegetative suite toward species that are more upland in character.
Altered text: The Engineering Reports indicate a reduction in contributory watershed to these two wetlands, which will likely have long-term, negative effects – changing the trajectory of the two wetlands. For example, although many of the wetland plants are facultative (adapted to seasonal changes in hydrology), the loss of so much of the contributory watershed will shift the vegetative suite away from wetland species toward species that are more upland in character.
Example 5. – The entire opening portion of the report is removed, which states that overall water quality issues have been addressed and suggesting that only post development testing will confirm the methods.
Original text: Overall, it is our professional opinion that water quality has been suitably addressed in the application through the use of multiple treatment practices in series. While calculations have been provided regarding removal percentages, those calculations should be considered an approximate representation based on a chosen method of computing them. While the validity of method chosen could be argued and there may be other methods available that are considered more accurate, the fact is that the results of these calculations vary widely and only post development testing would provide real confirmation.
Altered Text: The entire above section has been removed.
There are significant areas altered and changed, most notably the conclusion. Any areas where Milone and McBroom states “in their view” or any indication it is an opinion is removed to make the statements look like fact. Multiple times the initial letter suggested weighing the impacts of the development against the financial gains it may bring, Shapiro and Ross eliminated those.
Overall the changes initiated by Ross and Shapiro exaggerate potential impacts and minimize any improvements. But nowhere is it as bad as the conclusion.
Original text: In summary, we believe that there are wetland impacts proposed and potential alternatives that the commission needs to consider and balance against the economic development benefits of the project.
Altered text: In summary, there are wetland impacts proposed and potential alternatives that warrant consideration.
Keep in mind that creating a fog of potential alternatives is the exact plan of attack for the BCRD in fighting this. While the initial draft proposed a balanced approach, the revised draft pushes alternatives, which include moving the gas station or making the store smaller, both with would are not likely to be accepted by Costco. If the BCRD, and clearly Shapiro and Ross, can make the Commission approve only a smaller plan, it will like kill the project, which appears to be the goal.
Original text: Efforts have been made to minimize impacts and where appropriate provide for enhancement of buffers and other mitigation efforts to maintain protection of the wetlands. As for stormwater management, we believe that the water quality aspects of the design have been adequately addressed, but some additional detail should be presented to confirm the stormwater basin designs.
Altered text: Efforts have been made to minimize impacts, provide for enhancement of buffers where appropriate, and present other mitigation efforts to maintain protection of the wetlands. As for stormwater management, several water quality design elements have been incorporated into the proposed development, but some additional detail must be presented to confirm the stormwater basin designs, and appropriate calculations should be submitted to support the design.
Notice how the initial wording states water quality has been “adequately addressed,” the altered version states simply that some water quality design elements have been incorporated into the design.
Original text: If this is adequately addressed and the goal of zero increase in peak rates of runoff is still achieved with some level of infiltration included in the design where appropriate, we believe that the design has adequately provided protection to downstream resources. There has been a lot of discussion about mitigating developed condition volume increases, and a reasonable amount of soil testing has been done to support the limitations of the native soils to infiltrate stormwater. At this point, we believe that the applicant has adequately demonstrated that their ability to reduce stormwater volumes is limited to what is currently proposed. In addition, the downstream channels show no signs of abnormal erosion, and they appear adequately stable to pass an increase in stormwater volume.
Altered text: If these remaining issues are adequately addressed and if the goal of zero increase in peak rates of runoff is still achieved with some level of infiltration included in the design where appropriate, then the issue of downstream impacts can be properly evaluated. There has been a lot of discussion about mitigating developed condition volume increases, which are principally achieved through infiltration. A reasonable amount of soil testing has been done to determine the characteristics of the native soils. At this point, the applicant should summarize this information, confirm any postdevelopment volume increases, and clearly explain why further volume reduction cannot be achieved. For any increases in volume, an explanation should be provided regarding the ability of downstream resources to withstand the changes.
The altered text here completely changes the conclusion of the report. Initially, the report concluded the efforts addressed issues and were reasonable. In the altered version, there is demand for more information, explaining issues that have been detailed multiple times, and basically provide more work than any applicant has ever been asked to do.
Certainly some of the above is confusing, but put simply, Diana Ross and Daniel Shapiro received the peer review, lied about receiving it to others who had a right to know, held an ongoing dialogue with the peer reviewer Milone and McBroom to push an agenda through their document. Why Milone and McBroom would put their professional reputation in jeopardy for Ross and Shapiro is unknown.
What is also key is that all of the changes and alterations push the talking points of the BCRD. If the BCRD can push the concept of a smaller Costco than Costco would build, and have the Commission buy into it, they can kill the project. If they can muddy the water and demand a never ending list of more tests, analysis, and studies, they can kill the project, as is their goal.
There remain additional questions as well. We know both Shapiro and Ross, in additional to Milone and McBroom, saw the original and know it was modified. We do not know whose handwriting belongs to whom on the document, or if another party saw the document and made notes on it. There are also clearly conversations that took place either in person or on the phone which we do not have a record of that play a role; however, we do have a series of documents and emails that paint a clear picture of what took place in the time period in question.
A final vote is required by law from the Inland Wetlands Commission in May on the Costco. The public hearing portion will be closed in April. Who is actually on the Commission at that time to vote, who the towns support staff will be and who is in line for a major lawsuit is yet to be seen.