Paul Bass file photo
On Monday, three lawmakers asked  Department of Environmental Protection Commissioner Daniel C. Esty for his opinion on a controversial exchange of 17 acres of state-owned land in Haddam for 87 acres owned by a private developer abutting a state park.

If the swap is approved, developer Riverhouse Properties Inc. is planning to build a hotel and a mix of shopping areas on the 17-acre parcel.

By Tuesday, Esty said he was unable  to render a legal opinion on the transaction.

“As the Commissioner of DEP, I am not authorized to offer such opinions,” Esty wrote in a letter to lawmakers. “According to Conn. Gen. Stat. § 3-125, only the Attorney General may render formal legal opinions at the request of the Legislature.”

The Haddam land swap, which is included in a conveyance bill where the state expects to hand over parcels to a number of communities, is perhaps one of the more controversial issues heading into the last 24 hours of the legislative session.

“Ultimately, however, the proposal is a legislative and policy discussion that is subject to the discretion of legislators who reflect the priorities of their constituents,” Esty wrote in his letter to lawmakers.

The confusion over the land swap appears to come down to whether the deed to the land   requires it to remain as open space, and DEP officials are mum on the specifics of the deed’s language.

Opponents of the land swap — including environmentalists and freshman Rep. Philip Miller, D-Essex — say the 17-acre parcel was meant to be open space. Miller even went so far as to suggest to a reporter that the land was conserved, and that swapping previously conserved land for development will set a bad precedent.

It is important to note here that supporters of the swap say the 17-acre parcel in question was formerly a sand pit originally zoned for industrial use.

‘Should’ vs. ‘Shall’ – ‘May’ vs. ‘Must’

A government source at the State Capitol on Tuesday said the controversy comes down to the difference between the words “should” and “shall,” the former of which appears in the deed as part of a key phrase suggesting the land “should be retained in its natural scenic or open condition.” If the phrase were to read “shall be retained” or “must be retained,” there would be additional language spelling out specific conditions of the parcel’s conservation, according to the source.

Instead, the deed says “should” and in two separate sections of the document the parcel is described as “free of encumbrances.” The phrase means the land is not conserved, according to the source, and that language would not be there in two places if the words “must” or “shall” were used in the language about the land retaining its “natural scenic or open condition.”

Sen. Roraback, R-Goshen, one of the lawmakers who requested the opinion from Esty, said he was disappointed in Esty and added that the previous commissioner had been willing to provide such opinions to clarify issues like the Haddam land swap.

“The clear implication is that he doesn’t appear to want to defend the integrity or the necessity of the process and rather is willing to abide by the whims of the General Assembly,” Roraback said.

Roraback said he’s fond of the commissioner and believes Esty is smart and qualified, but this is totally out of character not to have an opinion on a policy issue. He said Esty has practically lived at the legislature working on the omnibus energy legislation over the past month.

“I’m disappointed he can’t work with the governor on this issue,” Roraback said. “This letter doesn’t serve to defuse the rumors and innuendo overtaking this building.”

The land swap is being led by Sen. Eileen Daily of Westbrook. The bill would exchange a 17-acre parcel in the Tylerville section of Haddam with an 87-acre property adjacent to a state park. The 17-acre parcel currently owned by the state offers a view of the Connecticut River, but has limited public access. If the swap is approved, Riverhouse Properties will build a hotel and a mix of shopping areas, Daily said last week, adding that residents would have an easier time accessing the view of the river once the property is developed.

In contrast, Miller said he has heard from conservationists and people who have donated other land to the state who told him if this swap goes through, they will never donate again. But Haddam First Selectman Paul J. DeStefano supports the swap, which is included in a larger conveyance bill that benefits numerous other communities.

Sen. Ed Meyer, D-Guilford, felt it was his responsibility as co-chairman of the Environment Committee to propose an amendment to deal with the policy, rather than the politics of the deal. Meyer’s amendment calls on Esty to review the land swap. He said Esty didn’t have enough time to review the current proposal.