Penfield Pavilion has been at the center of conversations for residents of Fairfield for more than 10 years.
It’s a community venue that’s home to numerous weddings, events, and celebrations. It also features a covered deck enjoyed by many residents. And it’s also a building that has been at the heart of the community, while also being at the heart of one of the town’s worst scandals. Contaminated fill was used underneath the building, in addition to other places around town, during reconstruction, and some former town employees and contractors face criminal charges for this issue.
When the building was rebuilt, it also was not built in compliance with FEMA’s regulations. If the building had continued to be out of compliance with FEMA, that situation threatened to affect flood insurance for both the town and local residents.
Representative Ken Astarita described this situation as “a confluence of criminality and staggering negligence.”
Officials took steps over the last few weeks to begin rectifying these challenges, which have plagued the community for years. Three elected bodies—Board of Selectmen, Board of Finance, and Representative Town Meeting—all approved plans to spend $10.5 million to rectify both the notice of violation from FEMA and remediate the contaminated soil underneath the building.
First Selectwoman Brenda Kupchick said that she believed this was the best step forward for the town.
“There were a lot of opinions about what should be built at Penfield,” Kupchick said at the February town hall. “It was four years of public meetings and discussions. Personally, I think we’ve lived with this building for a very long time. I personally think it’s an asset to our community. I would like to repair it, I would like to repair the violations, as unfortunate as that is. I think we should move forward, comply with the law, and close this horrible chapter on our town’s history.”
Let’s take a step back to review the history of the property and then see what’s ahead.
In 2006, the town started discussing rebuilding the original pavilion along the beach—a project that was completed for around $5 million about five years later in 2011. But in 2012, when Superstorm Sandy swept through, the building was severely damaged. Fairfield received notice in late 2015 that it would be eligible for a $4.3 million reimbursement grant from FEMA, providing it followed the approved scope of work for the project.
As construction started in 2016, the prior town leadership had received written notice in August that the “revised scope of work may not comply with local and National Flood Insurance Program regulations” and that continuing with the work could “violate the reimbursement conditions.”
In March 2017, Penfield Pavilion reopened to the public after costing about $7.3 million. More than a year and a half later, in November 2018, FEMA notified the town that it was “ineligible for reimbursement and reconfirmed the town’s noncompliance with floodplain management.” The town submitted two appeals, but both were denied and in June 2021, FEMA determined that the structure was in violation of its floodplain management requirements.
According to FEMA, the building’s grade beams, which sit under it, were set at a level of 10 feet, instead of the beach’s natural grade of eight feet.
While some residents who lived behind the structure said that they believed the slightly higher structure would help with flooding, Dean Savramis, FEMA's Region I Mitigation Division Director, said that the structure’s intention is not for flood control.
“A separate conversation is what type of mitigation can be performed to help residents whose homes are at risk of flooding,” he said at a February town hall.
Savramis also noted that the agency has regulations for a reason.
“Noncompliant structures do not perform well in storm events,” he said. “They tend to come apart…when buildings come apart they increase the damage to other properties.”
For example, during a storm event if the beam is exposed it can cause damage to it and the building foundation.
“The thinking is if the upper surface is at natural grade, you’re less likely to expose that vertical surface,” he said.
Melissa Surette, the floodplain management and grant chief for this area’s FEMA region, responded to residents asking about if a waiver could be granted or an exception made.
“There is a violation and the community has to take some type of action to resolve that,” she said. “As a federal agency we have to be very consistent.”
FEMA had given the town a deadline of March 31 to adopt an official plan for the site, or else the retrograding process would continue. That would mean the town would lose its discounted flood rates, and if nothing continued to happen, the flood insurance program for the town could have been suspended.
But FEMA’s notice of violation wasn’t the only problem with the site.
In 2019, multiple former Fairifield employees and contractors were arrested as a part of a fill pile scandal, where they allegedly conspired to use contaminated soil in projects throughout the town. One of the sites in which this fill was found was under Penfield Pavilion.
As part of the town’s agreement with the Environmental Protection Agency and state Department of Energy and Environmental Protection, it has to remove the contaminated fill from under the building and in the parking lot.
Plan of Action
Kupchick was elected in November 2019, after residents voted out former First Selectman Michael Tetraeu who served in that position while both the pavilion was built out of compliance and the fill was used throughout the town.
Kupchick said after she and her administration received the notice that the town’s appeals were denied in June 2021, they began negotiations with FEMA to come up with a plan to fix the notice of violation.
Two options came out of that, although other elected officials in town said that they should have been presented with more.
“We were led to believe there would be options and a discussion on them,” Representative Christine Brown said. “Maybe this really is the best solution but the frustration is all about how we’ve been brought into this process.”
The two options were: maintain the building and fix the issues underneath it or demolish the pavilion. Kupchick said she and her administration supported fixing the building since it was an asset to the town, and something the community had previously agreed on.
“Based on all the meetings we were in, it made sense to get under the building and clean out the soil. To me, that made the most sense,” Kupchick said at the February town hall. “Our town and our community have been discussing this pavilion since 2006. What we have right now, the current pavilion, is what the majority of our community accepted and weighed in on.”
Here’s a look at the proposal.
The town had put aside about $15 million in reserves over the last few years to deal with this issue. The boards all voted to use $10.5 million of that, along with $1 million in federal American Rescue Plan Act funds.
Some Questions and Opposition
Though this option was approved by all three boards, none of the votes were unanimous and many elected officials raised questions about how the administration handled the process. Others voiced concerns about having to vote on plans faster than they would have liked due to FEMA’s March 31 deadline, even though the process had been going on for years.
Selectwoman Nancy Lefkowitz, who voted against moving forward with option 1, said at the March Board of Selectmen meeting, that after hearing Kupchick’s presentation her “head was exploding,” with the amount of information to process and the fact that a decision had to be made at that meeting.
“It doesn't seem fair to the residents that we’re having to address this in this way,” she said, adding later that, “I’m not going to deny that it’s terrible that we’re here. I would hate for us to make the same mistake twice or three times, because we’re here and I do think we have a chance to slow this process down.”
She said that “it just feels like we’re making a decision without all the pieces.”
Selectman Thomas Flynn said that “I guess I'm the only one whose head isn’t exploding. This thing’s been coming at us like a train for years now. Now it’s finally here and it’s a problem.”
He added that, “at this point it’s time we stop admiring the problem.”
Liz Zezima, the Representative Town Meeting’s Democratic Caucus Leader, called the need to approve a plan, without having had more information and time to discuss options “a manufactured crisis or crisis of competency.”
She said that the RTM did not receive a lot of information on what was done behind the scenes with FEMA and felt left in the dark—particularly between the joint meeting on the pavilion in August 2022 and the town hall meeting with FEMA in February 2023.
After the Board of Selectmen meeting, in which the board approved the plans to fund repairing and maintaining the building by a 2-1 vote, Kupchick updated her presentation for the Board of Finance and RTM to detail the work done in between.
Still, Zezima said that they should have been brought in earlier.
“We shouldn’t be here in a hair on fire emergency but we are,” she said at the March RTM meeting. “To find ourselves here in an emergency meeting, two years after our appeal was denied is unacceptable.”
Representative Margaret Horton said that she was “disappointed with how this process has played out.”
“I feel like our leadership has left us in a position where we no longer have the luxury of time,” she said. “I truly wish that this process has been handled very differently.”
Others, however, noted Kupchick’s detailed presentations, multiple public meetings dedicated to this topic, and dozens of newsletters, outlining what was happening at Penfield.
Representative Ed Bateson said that if he was running the town he would have done the exact same thing and that he didn’t understand the comments about the lack of information.”
“I take exception to comments like that. I've been following this issue for a long time. I never felt like I've not been informed,” he said. “None of this has caught me by surprise and quite frankly it’s not a manufactured crisis.”
Representative Astarita said that he appreciated the questions his fellow RTM members posed, but felt that they had to act.
“I’ve heard a lot of great questions tonight and I can't help but wonder if this body had asked some of these questions back in 2012-13 we wouldn’t be in this situation,” he said at the March meeting. “It is time to make a decision and move forward…I think it’s an asset that this town cannot afford to lose.”
Now that the three boards have approved the plans for Fairfield, the town said that it addressed the worst of the consequences from FEMA. If the plans hadn’t been approved by the end of March, FEMA said it would have put the town into retrograde, which would have cost residents discounted flood insurance to start. If the town continued not to take action, eventually, FEMA said it could have been excluded from its flood insurance program and potentially ineligible for disaster relief.
Construction, based on the approved plans, is expected to take around 12-15 months, but could take up to 18, and is scheduled to start this fall. The project is complicated and officials said it will be done in phases—in each section, they would start by removing the contaminated soil before working on the grade beams and repairing it before moving to the next section.
And there are still a few unknowns. For example, based on records, the town is assuming there’s contaminated fill about 5 to 6 feet down. If the contamination is deeper than that, it could cost more.
Another issue that came up during this process is resiliency to storms and coastal flooding. Many residents in the beach area are concerned that lowering the Pavilion will cause or exacerbate more flooding in the area. As a part of the $10.5 million, the town is setting aside $100,000 to update its coastal resiliency studies in the area and see if there are improvements that could be made.
Some officials argued, even though they voted for the proposal, that this should have been done before they had to vote.
“The resiliency study should have been done before now,” Zezima said.
There are still outstanding questions about if any funding can be recouped from the criminal proceedings moving forward against the former officials who were involved in the fill pile scandal.
Still, Kupchick emphasized in her newsletter on Friday that by approving the plans, the town is able to avoid the worst of the consequences and take a step forward.
“I am very pleased to report the Town received confirmation in writing that FEMA made the decision to suspend the [community rating system] retrograde and other potential enforcement actions, as the ‘community has been able to demonstrate evidence of progress towards compliance at Penfield Pavilion,’” Kupchick wrote. “I knew it wouldn’t be easy to get all three boards to vote in the short time frame FEMA gave us, but I am grateful for the elected officials who voted in favor to support moving this project forward and avoid the negative consequences.”