The Uneven Application Of Town's Rules & Regulations: Article 1: Rec

Posted on 22 June 2012.

[Images being added live; 10 p.m., Friday, June 22]

By: Maria Moore

Residents expect the town?s commissions to enforce their rules and regulations in a fair, equitable way. When those rules and regulations are not applied to all residents in an equitable way, there are negative repercussions for the whole community; some residents are denied the opportunity to enjoy their homes and the use of the town?s publicly-owned properties and parks, while other residents ? and sometimes non-residents as we can see in one of the case examined below ? are allowed to enjoy the use of the community?s publicly-owned properties and parks despite the negative effects of their use on the lives of other residents in the neighborhoods in which that activity is being allowed. This leads to a fracturing of the community, with residents distrusting the Commissions that have disenfranchised them, and resenting the groups that they see receiving special treatment from the commissions which infringes their own rights.

Boaters were denied after-dark access to their boats moored at Brodie Park North. Photo: NewHartfordPlus archives

In this two-article series we will be examining specific cases where there has been an uneven application of the town?s rules and regulations to the benefit of some residents and to the detriment of others.

In this, the first article, we will look at the uneven application of the town?s Park Rules by the Recreation Commission, which denied a group?s request for a special use of a town park while approving that same special use to another group.

In the second article we will look at the uneven application of the town?s Zoning regulations by the Planning and Zoning Commission which, in one case placed special conditions limiting the use of a town park by a group that has been using that same park in the same way for the past 4 years, having first obtained a permit from Planning & Zoning for each year of the use.

Special conditions were placed on the Farmers? Market use of Chapin Park. Photo: NewHartfordPlus archives

At the same time that it was placing conditions on the use of a town park by the group in the first case, in a second case the P&Z Commission is allowing a similar, more intensive use of another park by a group, without placing any special conditions on that use, or even accepting that the special use as falls within the town?s Zoning regulations, as they had with the first case. Were the P&Z Commission to apply its Zoning regulations to the second group and require that second group to submit a site plan as they had required of the first group, that Commission would then have to acknowledge that the second group had never received a Special Exception for its intensified use of one of the town park, a necessary step according to the town?s zoning regulations. For a Special Exception to be granted in the second case, P&Z would require a public hearing during which park neighbors would have the opportunity to give input on the negative impact on their neighborhood of the group?s special use of the park; based on the negative impact on the neighborhood in question, a Special Exception would difficult to obtain. As we will show in our second article, the Planning & Zoning Commission has chosen not to enforce its own Zoning regulations in the second case, while in the first case, placing special conditions on similar use of another town park.

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Setting The Stage

New Hartford residents have entrusted the care of our town parks to the Recreation Commission, giving that Commission the ability to establish rules for the use of our parks that allow residents to enjoy using the town?s parks while respecting the rights of other park users as well as the rights of residents living near the parks.

Since 1967, when the Rec Commission was created, the Commission members have applied the park rules in a fair and equitable way. ?This year, however, the Rec Commission members have departed from their even-handed application of their own rules to everyone that has requested a special use of one of our parks; instead, they have approved several special uses of one of our town parks to one group, while one of those special uses was denied to another group. ?Here are both cases:

First Case: Adult Residents? Request To Walk Through The Park After Sunset To Access Their Boats On The Lake Denied By Rec Commission

Less than a year ago, on July 12, 2011, a group of adults went to the Recreation Commission?s meeting to ask for permission to walk through the park after sunset to get to their boats moored at the town-owned dock on West Hill Lake. Most of the adults present were long-time residents of New Hartford, whose children had grown up in town. Those residents paid a fee to the Rec. Department to keep their kayaks and boats on the town?s property by the lake and they had come to the Rec Commission to request access to their boats. Regarding the ?Park Closes At Sunset? rule, the residents said in one of their letters to the Rec Commission:

If the ?park closing at sunset? rule is to be enforced? shouldn?t it be enforced for everyone? The boaters of Brodie Park should be offered the same exception to the rule as others receive. Should the Boaters become an official organization? (Boaters of Brodie Park):

• Football ? Practices in the dark (under the lights) at Brodie Park South all football season;
• Karate ? Monday Nights in the summer after beach closes;
• Boy Scouts ? Camp-Outs in Brodie Park;
• Lions Club ? Flea Market set up at 4 a.m.

The boaters proposed that Rec implement a ?boating pass? which they would pay for and which would allow them to walk to their boats and kayaks and then walk back through the park on their return to dock.

The Rec Commission denied the boaters? request to be allowed to walk through Brodie Park North after sunset, giving as the reason for the denial the negative impact on the town?s insurance costs if they were to allow use of the town?s parks after dark.

The following is taken from the minutes of the July 12, 2011, Rec Commission meeting in which the Rec Commission members as well as First Selectman Dan Jerram give their reasons for denying the boaters? request. ?We have left only the initial of the last name of residents at the meeting to protect their privacy:

The Rec Commission has received letters and emails (attached [see the minutes of the meeting in the Town Clerk's Office]) and heard from several residents who keep their boats moored at the park with concerns about not having access to their boats after the park closes at dusk. They came to the meeting to discuss a possible solution to the problem.

John P. [a resident and a boat owner]?has suggested they create some sort of boating pass they can put in their cars so the police who patrol the area will know they have walked down and are out on the lake, and not get a ticket for parking in the Berkshire lot after 8 pm. Larry A. [another resident and boat owner] also suggested that the commission could even charge a fee for this pass. They have clear view from their property and can see people swimming in and around the boats at all hours even when the park is closed. They are always calling Officer Janco to report these goings on. Diane K. suggests that the boaters would be a kind of neighborhood watch to help deter the vandalism that keeps occurring.

John [Maschi, the Rec Commission Chairman] spoke on behalf of the Commission members and expressed appreciation for their care of the park and understanding of their request. However, after consulting with the Town Hall, the Police Department, and the town?s Insurance Consultant the liability exposure to the town is too great. The Insurance Consultant emailed the First Selectman?s office after our conversation that it was their opinion that the town not agree to keep the park open after dark. This could possibly represent a change in hazard which could require a physical inspection by the insuring carrier. An inspection could reveal possible liability hazards which might include lighting of the path down to the lake as well as paving. The Consultant also stated that the town?s policy is on a 3 year premium rate freeze and a change in hazard could jeopardize this. John also expressed concern that if the Commission were to grant this exception that other groups would also petition the Commission for exceptions.

Officer Janco then asked to speak and told everyone present that first and foremost it is a park and not a marina. He and all the Commission members know that they are not the ones vandalizing the Park and have helped maintain and clean it up. He also told them that there is a state boat launch open to the public which is open 24 hours for this very?reason and it would be just too hard to police the area if it ends up being opened up to everyone.

Deb P. then asked if they became a group could they carry their own insurance.

[First Selectman] Dan Jerram said that legal counsel is also not in favor of extending the park hours. He states that by doing this we stand to lose so much more. John stated that if we do not follow through on potential recommendations of loss control, rate hikes could be a significant amount of money that would have an impact on all residents. John summed up the discussion that the Commission is charged with acting on behalf of all residents and after hearing input from Town officials and representatives, the Commission would be irresponsible to ignore their professional input. Park hours remain dawn to dusk.

The adults accepted the Rec Commission decision. During the summer of 2011 they did not have permission to walk in the park after sunset, nor did they have permission to park their vehicles in the parking lot at Berkshire Hall at Brodie Park North after sunset. For the 2012 summer season, they still do not have permission to be in the park after sunset nor to park their vehicles in the Berkshire Hall parking lot.

Parking along Niles Road during Football practice in August, 2011. Photo: NewHartfordPlus archives

In the meantime, just a mile up Niles Road, in a section of the park known as Brodie Park South, a group of approximately 125 sports players aged 14 and under, plus their parents and their coaches ? identified as Football in the boaters? letter quoted above ? were using the park until well after dark from the beginning of August 2011 through mid-November. The group, a Rec-sponsored program called the New Hartford Football and Cheer, brought in their own construction lights powered by generators to light the park for after-dark use, they parked their 50-75 vehicles in the 12-vehicle parking lot at Brodie Park South as well as on the grass inside the park, and along the road outside the park, and sometimes on neighbors? lawns. They also placed a large steel POD inside the park for the whole Football season for their use.

Neighbors and other concerned residents went to the Rec Commission asking them to enforce their own park rules to control the situation at Brodie Park South; the Rec Commission did nothing to enforce their rules. The neighbors and concerned residents went to the Board of Selectmen, only to be told that they lived next to a park and they should expect that kind of activity. The neighbors and concerned residents then filed 12 complaints with the Planning and Zoning Commission based on the zoning regulations that were being violated by the park being in an R2 (residential) zone; the Zoning Officer, who was told by the Zoning Office?s legal counsel that the situation with Football?s presence at the park was ?90% political and 10% legal? refused to investigate the residents? complaints, while the Zoning Commission said it had nothing to do with them. The neighbors and concerned residents also called the local police and the state police about dangerous traffic situation and the unsafe parking created by Football?s presence on Niles Road, a steep and narrow country road; no action was taken by the police and when NewHartfordPlus reporter Maria Moore spoke to Officer Janco about his lack of enforcement action, he responded that he was using his professional discretion not to investigate the traffic and parking situation.

For the 2011 Football season, the entire Football program, consisting of 4 Football and 2 Cheerleading teams with participants in the program from New Hartford and other surrounding communities (Winsted, Barkhamsted, Norfolk and Colebrook) was allowed to continue practicing at Brodie Park South, for 5 nights a week during August and three nights per week during September through mid-November, and with practices being held until well after dark, with vehicles not leaving the park until 9 p.m. or later. During the 2011 Football season the Rec Commission maintained that they had not been asked for permission by the Football program for its intensified use of the town park, and that they had not received the support of other town officials in enforcing their Park Rules.

For the 2012 Football season, the Rec Commission received a request from the Football program to continue their practices at Brodie Park South under the same conditions as in 2011, and the Rec Commission unanimously approved that use. This despite continuing pressure from a residents? group called the Friends of Brodie Park South (FOBPS), which had been formed by the neighbors and other users of the park. The FOBPS pointed out to the Rec Commission that their Rec Department did not take an active role in allocating practice spaces to the different sports programs but rather allowed the sports programs themselves to allocate the practice spaces. This resulted in practice spaces with the infrastructure to support Football practices being used by other sports groups that did not require that infrastructure for their practices or, as in the case of the field space at New Hartford Elementary School, not to be utilized at all for active sports practices.

The FOBPS asked the Rec Commission to allocate to the Football program other practice fields with the existing infrastructure to accommodate Football?s needs but that request was not considered. The FOBPS also asked the Rec Commission to continue enforcing their park rule that parks close at sunset as they have always done in the past, but that request was denied, and the FOBPS concerns about the unsafe traffic and parking conditions created by the Football program?s 50-75 vehicles using a parking area designed for 12 vehicles was handled by the Rec Commission by allowing vehicles to be parked inside the park and along the road outside the park, something which they had never before allowed any other group to do on a regular basis at any other town park.

At their June 2012 meeting the Rec Commission members formally approved the Football program?s request to hold practices for their 130+ participants at Brodie Park South until after dark, they approved the use of privately-owned lights powered by generators to light the park area, they approved parking the Football program?s vehicles inside the park and along the outside of the park, and they approved the placement of a steel POD for Football?s use at one of the park?s entrances for the duration of the Football season.

To view the video of the June 6, 2012 Rec Commission meeting, click on the following link to the video posted on the NewHartfordPlus YouTube channel.

The following is taken from the draft minutes of the June 6, 2012, Rec Commission meeting in which the Rec Commission members approved the Football group?s request to use Brodie Park South for practices. In their remarks the Rec Commission members made reference to two letters, one received from a member of the Friends of Brodie Park South (FOBPS) who emphasized that the group did not agree with the use of Brodie Park South by the Football program with the special uses Football was asking for (that is, after-sunset use of the park when town parks are closed, using private lights in the park to allow practices to continue in the dark in a residential neighborhood, and 75+ vehicles using the park on a regular basis where the infrastructure only supports 12 vehicles, etc.). The FOBPS?s letter emphasized that their concerns had not changed as a result of the Rec-sponsored meeting in March when Rec had asked two representatives of the FOBPS to meet with two Football representatives and two Rec Commission representatives to get the residents? group to agree to Football?s presence in their neighborhood park. The second letter was from an attorney hired by the FBPS sent to the Rec Commission, to the Zoning Commission, the First Selectman and the Football program?s officers, and asking that the Rec Commission notify the Football program that it needs to obtain a Special Exception for its requested use of Brodie Park South for Football practices.

The draft minutes of the June 6, Rec Commission meeting say the following regarding that Commission?s approval of the Football program?s request to hold practices at Brodie Park South after sunset:

John?s response to Mayo Crowe LLC [the attorneys hired by the FOBPS] was that we?re not ?country bumpkins? and were not born yesterday. We are well aware of the things we can and cannot do as a Commission and didn?t need a letter from this attorney to tell us that. We are well aware that anybody that has an issue comes before us, it?s just common sense. Anything we do is subject to the other boards and commissions or regulatory committee in town and always goes through all the proper channels.

John then summarized the contents of the letter from Heinz about the last meeting and his and the FOBPS feelings about the end result and why they disagreed. John addressed a couple of them, the parking situation. We are in communication with Officer Janco and the thinking is to park inside the gateway rock wall and the rock wall on the Niles side. We feel that will be sufficient and the turnaround to have as few cars there as possible. Get the kids in and out and move in and out as quickly as possible with parent help to keep the traffic moving and the kids safe. We think we have addressed that. The noise level can be muffled by moving much of the activity below the tree line. Nobody will tolerate the rogue parents and that will be monitored by the parents and members of football. John asked Joe P. [an officer of the Football progrm] if he can attend the Football Parents meeting to discuss these issues. Practice will be 5:45 to end at 7:45 to get cleaned up and get the kids out of there by 8pm. The plan is to reduce the amount of cars that go up there and the Comm has run it by football already and that would be to have cheerleading practice held at BPN 2 of the 3 nights a week and only practice once a week back at BPS to be with the football teams. And as far as parking is concerned, the information that we have from P&Z is that as long as Recreation designates a specific area for parking it is so deemed a specific area for parking, so we?ll abide by that. Back to Heinz?s letter regarding the environmental impact, there has been a BP Subcommittee on that a little bit longer than this has been going on. On that Committee is Jean Cronauer, she is heavily involved in environmental issues and she has been very involved on this committee and BPS is deemed ?active recreation? and it was agreed to by that committee that it can and will be used as such and will not have a detrimental effect on the environment. All these things were taken into consideration, the concerns have been brought to our attention many times. John feels the Commission has done its due diligence and has done what is in the best interest of the overall community. We understand people have their own ideas about what needs to be done with their own thoughts and ideas. We get all that, but it is our job to weigh the pros and cons and some people will be happy and some will not, we totally get that, we totally respect that. What John would like to do is ask the Rec Commission if they have any other suggestions. Sally [O'Neill, Rec Commission member] agrees with John. The Rec Commission has done its job to make this acceptable to everyone involved. We have done our due diligence and it is time to move forward. Maureen [Morrissey, Rec Commission member] agreed wholeheartedly with that. Dan [Eddy, Rec Commission member] and Ed [Smith, Rec Commission member] are not here this evening but if passed we will pass it onto the the other authorities in town. Our job is to oversee the land as it is.

Sally then made a motion, seconded by Maureen, based on the items John Maschi has just gone over including:

• A. working with Town Hall,
• B. Officer Janco to facilitate the parking,
• C. working with football and cheer parents to monitor use of the park
• D. activities below the tree line to reduce the noise levels as much as possible,
• E .a lighting request from 5:45 to 7:45 and lights must be out by 8pm,
• F. cheerleaders will practice 2 nights a week at BPN and 1 night with the football teams at BPS,
• G.environmental issues have been cleared with Jean Cronauer,
• H. and the lights are a safety concern but pending approval from P&Z.

All were in favor and the motion passed.

No Application Will Be Made By the Football Program To Planning & Zoning Commission

After the Rec Commission?s June meeting, NewHartfordPlus reporter Maria Moore asked whether there would be an application made to the Planning & Zoning Commission related to Football?s use of Brodie Park South. She was told that Rec had been informed by the First Selectman?s Office that the First Selectman had checked with Rista [Malanca, the Zoning Officer] and that she had told him that that everything that Rec was planning to approve for Football at Brodie Park South was fine and they didn?t need anything from the Planning & Zoning Commission.

No Pending Items With Planning & Zoning Related To Football Use Of The Park

Our reporter also checked directly with Rista Malanca, the town?s Zoning Officer, and she confirmed that she had no pending items related to Football?s use of Brodie Park South. The only thing she had was the letter to the Commission from the attorney representing the Friends of Brodie Park South.

Unanswered Questions To Rec Commission Chairman Re. Denial Of Boaters? Request And Insurance Implications Of After-Dark Use Of Park For Football Practices

On Monday, June 18, NHPlus reporter Maria Moore emailed the Rec Commission Chairman letting him know that she was working on this article and asking for his input on the denial of the boaters? request and the effects on the town?s insurance following the Rec Commission?s approval of after-dark Football practices at Brodie Park South. The email says:

?Hi John:

As soon as we posted the video of the June Rec meeting I was asked by a reader to post the July 2011 Rec minutes together with the June 2012 minutes when they became available. I now have both sets and will be posting them and comparing the way the boaters? request was handled by the Rec Commission in 2011 vs. the way Football has been handled this June.

I?d like to know the reasoning used by the commission members in reaching their apparently contradictory conclusions in those cases. Also, since insurance considerations were at the root of turning down the boaters? request, is this no longer a consideration, especially in view of the fact that the town specifically excludes coverage for active sports in the town?s insurance policy? Does the football program carry its own insurance for its participants, and how are out-of-town participants handled? Do their towns cover them under their policies if they were to get injured while participating in the football program sponsored by Rec?

I?ll gladly call you if you?d like me to, or you can call me at any time? I will be posting both sets of minutes on Tuesday afternoon so I?d really appreciate some response from you.

Thanks so much for your help,

Maria?

As of today, Friday, June 22, our reporter has not received a response to her email. If and when she receives a response, she will update this article accordingly.

Repercussions In The Community From The Rec Commission?s Uneven Application Of Its Park Rules

The uneven application of the town?s Park Rules by the Rec Commission outlined in the article above has led to some residents who use the town?s parks being disenfranchised, their right to enjoy the park equally with other town residents ignored by the Rec Commission members who have instead chosen to approve special uses of a town?s park to a Rec-sponsored active sports youth group, while denying that same use to adult residents. ?This has created a situation where park users can no longer be assured that they will have equal access to the town?s parks, leading to resentment of the special uses allowed to some residents ? and in the case of the Football program to their non-resident participants ? while that same use is denied to other residents.

Just as importantly, the neighbors of Brodie Park South also see themselves as being disenfranchised, seeing their input about the disruption to their neighborhood from the intensified use of the park by Football ignored by the Rec Commission. These park neighbors have seen their neighborhood stripped of the protections that other park neighborhoods enjoy in town where park use continues to be limited to sunrise to sunset, and the traffic and noise levels are controlled so as not to disrupt the neighborhood. This has led the neighbors to form a group and to hire an attorney to ensure the equitable enforcement of the town?s rules and regulations to protect their enjoyment of their neighborhood and their property values.

Upcoming Second Article: The Uneven Enforcement Of Zoning Regulations

Our second article in this series will explore the uneven enforcement of the town?s Zoning regulations, as illustrated by two similar cases with very dissimilar outcomes from the town?s Planning & Zoning Commission and Zoning Officer.

See Also:

The NewHartfordPlus August 22, 2011, article on the Rec Commission?s denial of the boaters? request to access their boats after dark at Brodie Park North.

Football practice continued at Brodie Park South as dusk fell in August, 2011. Photo: NewHartfordPlus archives

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