TOWN OF EAST WINDSOR
CONSERVATION COMMISSION
INLAND/WETLANDS WATERCOURSE AGENCY
Regular Meeting
March 5, 2008
***** Draft Document - Subject to Commission Approval *****
CALL TO ORDER: Vice Chairman Ceppetelli called the Meeting to order at 7:38 p.m. in the Town Hall Meeting Room, 11 Rye Street, Broad Brook, CT.
ESTABLISHMENT OF QUORUM:
Present: Regular Members Michael Ceppetelli (Vice Chairman), Richard Osborn, Michael Sawka, and Jan Warren.
Unable to Attend: Regular Members Michael Koczera, John Malin, and Rene Thibodeau.
Vice Chairman Ceppetelli noted the establishment of a quorum with four Regular Members; he noted all Regular members will sit in on votes this evening. Also in attendance was Wetlands Agent/Zoning Enforcement Officer Bednaz.
AGENDA ADDITIONS:
Vice Chairman Ceppetelli noted the following application will be received under NEW APPLICATIONS TO BE RECEIVED this evening:
* A. 68 Newberry Road (Steve Dearborn) - Agricultural use, piping an intermittent water course within wetlands, through two 24” pipes.
APPROVAL OF MINUTES/December 5, 2007:
MOTION: To ACCEPT the Minutes of Regular Meeting dated December 5, 2007 as corrected: Page 3, CONTINUED APPLICATIONS OR BUSINESS/A. 244 South Main Street (rear) - Continued application of Balch Bridge Street Corporation for the removal of fill material in regulated area, regrading of slope and establishment of permanent vegetative cover, paragraph 2, second sentence: “Wetlands Agent Bednaz suggested the slope had been stabilized and the erosion controls had been put in place but nothing has been
done with regard to removal of removing the soils.”; same application, same page, same paragraph, last sentence: “An Enforcement Notice has been issued to Mr. Balch; she Agent Bednaz has subsequently spoken................”; same application, same page, sub-section 1) of motion, last sentence: “ If compliance is not received within the specified timeframe, the a soil stabilization and erosion control bond.......”.
Osborn moved/Warren seconded/VOTE: In Favor: Unanimous
APPROVAL OF MINUTES/February 6, 2008:
MOTION: To ACCEPT the Minutes of Regular Meeting dated February 6, 2008 as written.
Sawka moved/Osborn seconded/In Favor: Unanimous
PUBLIC HEARING/A. Wapping Road (Herb Holden Trucking, Inc.) - Continued Public Hearing on the application of Herb Holden Trucking, Inc. to conduct regulated activities associated with access roadway improvements. Property is located on the north side of Wapping Road, 2000+/- feet from Plantation Road. (35-day deadline to close public hearing ends 1/9/08):
Vice Chairman Ceppetelli read the Hearing description. He noted the 65 day extension for the Hearing ends March 7, 2008; the Commission needs to close this Hearing tonight. Wetlands Agent Bednaz reported the Planning Office has had no updates since the last meeting but she understood that the Applicant is seeking a waiver from the Planning and Zoning Commission. They would not need this Application to be accepted or permitted from this Commission.
Vice Chairman Ceppetelli queried the audience for anyone in attendance who would be representing the Applicant; no one spoke up or came forward. It was noted that no correspondence with regard to this Application has been received by the Planning Office.
Vice Chairman Ceppetelli suggested the Commission consider denying this Application without prejudice, which would give the Applicant the ability to re-file another Application within a short time.
MOTION: To CLOSE the Public Hearing for Wapping Road (Herb Holden Trucking, Inc.) - Continued Public Hearing on the application of Herb Holden Trucking, Inc. to conduct regulated activities associated with access roadway improvements. Property is located on the north side of Wapping Road, 2000+/- feet from Plantation Road.
Sawka moved/Osborn seconded/VOTE: In Favor: Unanimous
MOTION: To DENY WITHOUT PREJUDICE the Application of Herb Holden Trucking, Inc. to conduct regulated activities associated with access roadway improvements. Property is located on the north side of Wapping Road, 2000+/- feet from Plantation Road.
Warren moved/Osborn seconded/
VOTE: In Favor: Osborn/Warren/Sawka
Opposed: Ceppetelli
Abstained: No one
CONTINUED APPLICATIONS OR BUSINESS/A. 68 Newberry Road - Continued application of Steve Dearborn for a Permitted-Use-As-Of Right for a farm road to pond. Pond to be dug in August. total parcel is 26 acres, served by private well and public sewer. (65-day application period ends 4/11/08); AND, CONTINUED APPLICATIONS OR BUSINESS/B. 68 Newberry Road - Continued application of Steve Dearborn for a Permitted-Use-As-Of-Right for pipe intermittent drainage ditch to stop erosion and make more crop land. Total parcel is 26 acres, served by private well and public sewer. (65-day application period ends 4/11/08):
Vice Chairman Ceppetelli noted there are two Applications before the Commission this evening; he read the descriptions for both Items of Business.
Appearing to discuss this Application were Attorney Mark Needleman, representing the Applicant; Steve Dearborn, the Applicant; and Rachel Dearborn, Professional Engineer.
Attorney Needleman noted the Applicant is withdrawing the Application (Item B) for a determination As-Of-Right with respect to the channeling of the intermittent drainage ditch; that activity is the subject of an additional Application which is being submitted tonight. Ms. Dearborn submitted a letter withdrawing Application B.
Attorney Needleman indicated he is continuing discussion of Item A.
Attorney Needleman reported he has reviewed the audio tape of the February 6th Meeting, noting the quality of the tapes was challenging. He referenced a sketch positioned on an easel before the Commission, noting the location of the proposed farm pond in the rear corner of the property. Attorney Needleman suggested the location of the farm pond was at the lowest point of the property; he felt no one disputed that opinion. Attorney Needleman indicated they are appearing before the Commission this evening for a request (rather than an application) for a determination As-Of-Right under Wetlands Regulations Section 4.1, which he suggested were modeled after the State Statutes. Attorney Needleman indicated that the Meeting tapes reflect that our Wetlands Agent stated that
her opinion of this matter, meaning the pond itself, was a matter under Section 4.1 which should be and could be granted as a Matter-Of-Right in terms of determination. He indicated that the concerns raised by the Commission were whether or not the roadway, which is immediately adjacent to the farm pond, would as be a permitted use As-Of-Right. Attorney Needleman suggested he is appearing before the Commission to offer supporting evidence that the roadway is permitted As-of-Right.
Attorney Needleman referenced another plan, which was offered as part of an Application submitted by Ken Hunt for a roadway accessing a farm pond at 206 East Road. This Application appeared on the Commission’s Agenda for the Meeting held June 7, 2007. Attorney Needleman noted the tapes for that Meeting indicated Mr. Hunt advised the Commission he had previously had an easement over a roadway owned by an adjacent property owner, who had requested that that arrangement cease. Mr. Hunt advised the Commission that he needed to access the farm pond as well as the area past the farm pond; to do so he had presented a proposal to the Commission to create another farm road immediately adjoining the existing roadway. Attorney Needleman indicated the tapes reflected that there was considerable
discussion as to the width of the proposed road. Mr. Hunt indicated he planned to build the farm road “from scratch”, which he felt he was permitted to do As-Of-Right. Attorney Needleman reported the Commission unanimously allowed him to create a 12’ wide road through wetlands, which included a pipe under the roadway. Attorney Needleman indicated he felt that Application was a mirror image of this request.
Vice Chairman Ceppetelli indicated that he attended that Meeting and heard that Application; he didn’t recall Mr. Hunt saying he would be filling wetlands. Attorney Needleman reported Mr. Hunt said “he would be starting from scratch”; it was a wetlands area. Vice Chairman Ceppetelli questioned if Mr. Hunt had done that work? Attorney Needleman replied negatively, noting the Commission granted the matter As-Of-Right to construct the road. Wetlands Agent Bednaz noted she was not present for the Hunt Application, but it does not say anywhere on the permit that there would be filling of wetlands. She indicated that the permit indicates a wetlands crossing or intermittent watercourse with installation of 24” concrete pipe for access to farmland for agricultural purposes of growing hay. She further noted there were no wetlands shown on the plan; the wetlands were not discussed at the Meeting. Wetlands Agent Bednaz suggested the paperwork does not reflect that the channel had a
continual flow; the question is: were there wetlands there? She reiterated that the permit doesn’t mention wetlands filling. Attorney Needleman suggested the Minutes of that Meeting, although not a transcript, referenced a wetlands crossing, and Mr. Hunt did state on the record that “he would be starting from scratch.” Wetlands Agent Bednaz indicated she would like to make a field inspection to clarify a wetlands area; if the activity was incorrectly permitted the situation would be corrected.
Vice Chairman Ceppetelli indicated he believed it was well documented and stated that from the DEP’s point of view at no point should there be filling in the wetlands. Attorney Needleman suggested that their Application for a request for a ruling pursuant to Section 4.1a involves the farm pond; he suggested the Commission’s Minutes reflected their belief that use, the farm pond, was allowed As-Of-Right. He indicated they stand on their previous presentation. Vice Chairman Ceppetelli requested Wetlands Agent Bednaz to address that situation.
Continuing with the results of her review Wetlands Agent Bednaz indicated that it had been stated by DEP and the Town Attorney that any farm pond, as long as they are less than 3 acres in size. Wetlands Agent Bednaz that belief is also supported by the Commission’s Regulations; it’s very clear that the farm ponds are permitted As-Of-Right. Vice Chairman Ceppetelli suggested the only question at this point involved the access road.
Wetlands Agent Bednaz also brought to everyone’s attention communication to the Planning Office from Gerry Wilcox, an abutting land owner. That communication addressed the question of the Army Crop of Engineers’ involvement in review of the application. Wetlands Bednaz noted that the Army Crop of Engineers requires submission of an application for activity which creates greater than 5,000 square feet of impact. She also noted that the Application submitted by Mr. Dearborn is for a farm pond; the Army Crop of Engineers may have exemptions for farming activities of which she is not presently aware. Wetlands Agent Bednaz indicated she is making the communication public so the Applicant is aware of all issues. Attorney Needleman indicated they are aware that the issue was
raised; they will deal with the Army Corps requirements if necessary.
Attorney Needleman indicated he wanted Mr. Dearborn to testify that the proposed activities are a farming activity, unless the Commission is sufficiently familiar with the use over the past year and the intended use and feels that no further evidence need be presented. Vice Chairman Ceppetelli indicated he was comfortable with the use as presented; he requested other Commissioners to speak up if they needed any additional information regarding the farm use. None of the Board members asked for additional information; Mr. Dearborn made no comments at that point.
Attorney Needleman then referenced a diagram on the easel which he wished be made part of the record. He pointed to areas that were marked in green with brown spots; those areas were the areas planted and harvested in the past year, the first year of Mr. Dearborn’s ownership. Attorney Needleman then pointed to at least two areas marked with green (but no cross-hatching) as new/additional areas which Mr. Dearborn hopes to plant farm. Attorney Needleman suggested that clearly all the area in brown and green has been, or will continue to be, farmed. Since the Commission raised no questions or concerns Attorney Needleman moved on to discussion of the road.
Attorney Needleman again referenced the subject diagram, noting there are two lines on the large scale map - one light green and the other dark green. He indicated the dark green line represents the Town’s official Wetlands Map, which is the map Mr. Dearborn was aware of when he built what he built - the farm road. Attorney Needleman noted that the prior property owner had retained Mr. Logan to map the wetlands; that mapping is reflected by the lighter green line, which intersects with the roadway built by Mr. Dearborn. Attorney Needleman indicated Mr. Dearborn was not aware of the map prepared by Mr. Logan when he put in the roadway. Vice Chairman Ceppetelli requested clarification that Mr. Logan, a registered Soil Scientist, had plotted the actual wetlands? Attorney Needleman
concurred that Mr. Logan was a Soil Scientist, but felt questioned that Commission ever adopted Mr. Logan’s mapping. Vice Chairman Ceppetelli noted the Commission had given Mr. Dearborn the opportunity to do his own mapping, but that information has not come forward. Attorney Needleman indicated they had called Mr. Logan, who said he couldn’t do any mapping at this time of year because it wouldn’t be accurate.
Attorney Needleman suggested he felt the debate involved around the issue of the road construction, and where the road could be constructed. He suggested that the State Statutes and the Commission’s Regulations speak about road construction, not road usage. Attorney Needleman read the following excerpt of “Section 4, Permitted uses as-of-right and non-regulated uses. 4.1, the following operations and uses shall be permitted in inland wetlands and watercourses as-of-right.” Attorney Needleman suggested that they don’t concede that part, but felt that assuming the area is wetlands by virtue of some unofficial mapping that’s been done by someone else, but is an area not shown wetlands by the Town’s official wetlands map, “the following are allowed,
or permitted is the word, as-or-right:
“farming” - Attorney Needleman indicated he felt everyone agreed that that’s what’s going on here, and was not an issue.
“harvesting of crops” - again, Attorney Needleman suggested he believed that is what’s going on and is not an issue.
“farm ponds of 3 acres or less” - Attorney Needleman suggested everyone has agreed on this so that’s not an issue.
Attorney Needleman suggested the language of Section 4 then goes on in the middle of the paragraph “the provisions of this subdivision” (meaning what’s allowed as-of-right) “shall not be construed to include road construction not directly related to the farming operation, comma”. Attorney Needleman suggested that based on the Commission’s prior discussions he didn’t think there was any disagreement that this road is related to a farming operation. If that is an open concern for anyone Attorney Needleman suggested they were prepared to address it.
Vice Chairman Ceppetelli indicated he didn’t feel it had been determined if the road was necessary, and if it’s necessary to build a road through wetlands to access a pond do you really need to that for a farming operation; he didn’t feel that it had been established that there wasn’t a better place that has less impact on the wetlands to build that road. Vice Chairman Ceppetelli indicated that was the reason the Commission wanted the Applicant to come forward with an Application; he indicated the Commission wanted to work with the Applicant but they wanted to do so in a manner which is best for that particular area. Attorney Needleman suggested that under the Commission’s Regulations (As-Of-Right) it isn’t the Commission’s prerogative to suggest where an Applicant can
build road and under conditions as they would under a normal application. He suggested that As-Of-Right means not subject to conditions. Attorney Needleman suggested the question was: does this activity fall under the definition of a matter As-Of-Right?
To support his contention that the road construction was an activity allowed As-Of-Right Attorney Needleman continued to read the language of Section 4 - “it won’t be construed to include road construction not directly related to the farm operation, filling, or reclamation of wetlands or watercourses with continual flow.” Attorney Needleman suggested it’s not allowed as-of-right if it involves filling or reclamation of wetlands or watercourses with continual flow; he suggested the language “with continual flow” is the operable language here. If there is continual flow then it’s not a matter as-of-right; if there is, then under this language, it should be read as it’s written with the comma after the words “farming operation”. To support his
contention Attorney Needleman cited a 1995 Superior Court decision - the case of Rivezzi vs. North Branford Inland Wetlands and Watercourses; he later indicated that the case had not been appealed to his knowledge. He suggested that in that case the issue of concern involved the repair and stabilization of an access road, a farm access road. Judge Booth, who decided the case, said that there was a written request to the agency to determine whether or not the repair and stabilization of a farm road on a portion of their farmland was a permitted, non-regulated use of their property pursuant to Section 4.1a. Attorney Needleman suggested this was the same issue; the Applicant is making a request for a determination rather than submitting an application,
Vice Chairman Ceppetelli and Wetlands Agent Bednaz questioned if the case referred to a repair of a road of an existing road? Attorney Needleman suggested they were speaking of construction, which is a far more intrusive activity, however, the legal issue is the same. He indicated that the Judge stated: “In order for the agency” (Attorney Needleman identified the agency as being the Wetlands Agency) “to prevail in it’s conclusion that the exemption is not available the Court had to have an evidentiary basis” (Attorney Needleman translated evidentiary basis as evidence) “on which to conclude that the proposed repair would result in the relocation of watercourses or filling or reclamation of wetlands, both with continual flows.” Attorney Needleman indicated that
again, the operative language was continual flows. He suggested there was discussion at the Commission’s Meeting about the issue of whether or not continual flow was applied here or not for filling or not. Attorney Needleman suggested that reading the regulation, with its punctuation, whether we like it or not, and listening to the Judge also saying the same thing, he’s saying that there has to be a finding by a Commission that there would be filling in an area where there is continual flows.
To support his interpretation that continual flow does not exist in the intermittent watercourse Attorney Needleman queried Mr. Dearborn as to the type of activity which occurs in the area where the road currently exists, and could he point to the area he would be referring to on the map on the easel. Mr. Dearborn suggested it water runs there when it rains; it just flows through the leaves there, through the trees. Mr. Dearborn indicated how the land slopes down, and indicated the direction of flow; he replied affirmatively to Attorney Needleman’s question that the property goes west to east towards the area where the pond is depicted. Mr. Dearborn responded affirmatively to Attorney Needleman’s question that he was describing surface flow when it rains, and responded negatively to
Attorney Needleman’s question that in times other than rainfall events is there a continuous flow in the area; Mr. Dearborn indicated there is nothing, it dries up. Attorney Needleman cited the Regulations define continual flow as being “flow of water that persists for an extended period of time, although it may be interrupted during periods of drought, or during the low periods of annual hydrological changes June to September, but then re-occurs.” Attorney Needleman suggested that based on Mr. Dearborn’s observations as the owner and occupant of the property, clearly, there is not continuous water flow.
Vice Chairman Ceppetelli questioned that Mr. Dearborn had been the owner of that property for about one or two years? Mr. Dearborn responded that he bought it when we had the worst rainy weather. Attorney Needleman suggested Mr. Dearborn had said he’s been the property owner for less than two years, and in that time there has been no continuous water flow, the only water that he’s seen is during a rain event. Attorney Needleman felt that testimony supported their request for a determination. He suggested there is no question that the farm pond is allowed. The road has been installed and goes nowhere but to the farm pond. Attorney Needleman queried Mr. Dearborn as to where the road goes? Mr. Dearborn indicated it goes nowhere except to the tar and then stops; he needs
the road to get an irrigation pump out to the pond if necessary. In response to Attorney Needleman’s questions Mr. Dearborn indicated the low point of the pond would be at the property’s southwest corner, which is the location of the termination of the road. Vice Chairman Ceppetelli requested clarification that Mr. Dearborn would be reshaping and remaking the pond? Attorney Needleman replied affirmatively. In response to Attorney Needleman’s question Mr. Dearborn indicated he established the design at the lowest area of the property. If he were to reshape it as a rectangle going north to south it would not work hydrologically as the land starts to go uphill when you go south to north. The pond would have to be dug very deep in order to hold any water.
Commissioner Osborn questioned if there was a farm road in that are before Mr. Dearborn constructed the road? Mr. Dearborn replied that there was not. Commissioner Osborn questioned if Mr. Dearborn had acquired a permit to construct the road? Mr. Dearborn replied negatively. Commissioner Osborn suggested that this application was not the same as the East Road application as that owner came before the Commission with his request prior to installation of the road. Attorney Needleman suggested when Mr. Dearborn installed the road it was done based on the official Wetlands Map, which showed the wetlands outside that area. Commissioner Osborn suggested it was not outside the regulated area. Attorney Needleman countered this activity is a matter-of-right; although it might be
prudent to do so the neither the regulations nor the State Statutes require that he come in legally.
Attorney Needleman indicated he had completed his presentation and would take questions from the Board. Vice Chairman Ceppetelli requested that Wetlands Agent Bednaz give her comments.
Wetlands Agent Bednaz indicated she felt the most important statement is: is a farm road within a wetland a permitted use as-of-right? She noted she had contacted DEP regarding this issue; their information corresponded with her interpretation of the regulations - an interpretation that was verified by the Town Attorney as being valid. Wetlands Agent Bednaz indicated that her interpretation is: that both within our regulations, the State Statutes, and within the guidance document that’s been prepared by DEP entitled “Agricultural, Agriculture, Forestry and Wetlands Protection in Connecticut” as everything is listed there the filling, the reclamation of wetlands or watercourses with continual flow is listed as something that is not permitted as-of-right.
Wetlands Agent Bednaz indicated the intent of that is when you’re in the upland review area that omits you from having to retain a permit; that’s when the as-of-right comes into affect - the fact when you’re in the upland review area, or an area that’s under review by the Commission that’s not actually in a wetland.
Wetlands Agent Bednaz indicated the interpretation of the filling or reclamation of wetlands or watercourses with continual flow has been referenced to watercourses. And the interpretation from DEP and our Town Attorney is that wetlands are wetlands; they have flow underground and that is something that can not be observed from the top, so wetlands are always wetlands, they are never not wetlands. The continual flow defines a watercourse which is perennial vs. intermittent vs. a drainage ditch, whatever it may be; it gives that better definition.
Wetlands Agent Bednaz indicated it is the opinion of the Town Attorney and DEP that any activity within wetlands that is filling, or removal of soil from a wetlands, is not permitted as-of-right, and you can not legally permit that as-of-right.
Wetlands Agent Bednaz also noted another situation occurring with regard to this property is the concern of the neighboring property owner, Mr. Wilcox, who is concerned that water will back up on the property. She has visited the property and as Mr. Dearborn stated, the water does flow down the hill and then into Mr. Dearborn’s pond. Without the proper conveyance of drainage from one side of the access road to the other there is the potential for the road to act as a dam if it’s not constructed properly. Attorney Needleman indicated the plan calls for the installation of two 12” pipes. Vice Chairman Ceppetelli and Wetlands Agent Bednaz stated that without the requirement for an application the Commission would have no jurisdiction nor any ability to ensure that installation
occurs. Attorney Needleman indicated the Applicant was willing to work with Staff and the Commission; he indicated they voluntarily agreed to install two 12” pipes as shown on the plans. Wetlands Agent Bednaz stated her understanding from DEP, and our Town Attorney, is that if we allow this to go through as-of-right that is something that we are legally not allowed to do because of the fact that it requires the filling of wetlands to put it in. Attorney Needleman indicated that interpretation would require the comma in the Regulation language as he referenced earlier.
Commissioner Osborn questioned if the farm pond would be used strictly for agriculture - that it would not be used in Mr. Dearborn’s commercial operation? Mr. Dearborn reported it would be used to irrigate his 20 acres; it would have nothing to do with the mulch operation as he depends on the rain for that.
Vice Chairman Ceppetelli asked if anyone from the public wished to speak. Mr. Gerald Wilcox, owner of adjacent property at 50 Newberry Road, came forward. Mr. Wilcox indicated he held a contractor’s license with the State as a sub-surface water contractor, which he felt qualified him to speak on behalf of water disposal. He indicated he has been in business for 38 years and has a habit of helping, rather than bothering, his neighbors. Mr. Wilcox felt the construction of the access road would affect his property to some extent, but would affect the property owner to the east tremendously. Mr. Wilcox indicated he intends to develop his property to it’s full extend; when that occurs the Town may have problems if you allow the wetlands to the east to be decreased.
Mr. Wilcox noted he has seen nothing to indicate proposed or existing grades, where the soils taken from pond will go, etc. He noted he retained a professional engineer to document Mr. Dearborn’s road construction as he felt because of the natural slope of his own property the water comes from that pond. It’s been documented that two to three feet of wetland material was taken out for the road, other material was put back in without the supervision of a professional engineer. Mr. Wilcox suggested that when material is removed from the wetlands, and other material put back in, you create a dam. If you create a dam in wetlands on both sides of the road it means the wetlands back up on the adjacent property.
Mr. Wilcox also noted the property had been on the market for three or four years when the Noble’s were trying to sell it. He suggested the wetlands maps were made in 2006 and an A-2 survey acquired before the property was sold. Mr. Wilcox indicated he had a hard time hearing Mr. Dearborn didn’t know there were wetlands there; he felt it was pretty knowledgeable that the wetlands were there.
Vice Chairman Ceppetelli felt that everyone agreed the pond to be dug in August was allowed As-Of-Right; the question remaining is: is the road itself a matter As-Of-Right also?
MOTION: To DENY the Use-As-Right for the farm road.
Osborn moved/Warren seconded/
VOTE: In Favor (of denial): Osborn/Warren/Ceppetelli
Opposed: None
Abstained: Sawka
Vice Chairman Ceppetelli noted the Commission lacked a quorum to vote if Commissioner Sawka abstained from the vote; another option would be to continue this Application to the next Meeting. Commissioner Sawka felt perhaps that was a better choice, as his 40 years of experience in the construction business and his experience with ponds indicated to him Mr. Dearborn needed this pond. Commissioner Osborn clarified that he had not denied the pond; the issue wasn’t the pond. Wetlands Agent Bednaz clarified that the Commission was saying the road would not be allowed As-Of-Right, but Mr. Dearborn could file an application for its construction. Mr. Dearborn requested clarification that he could dig the pond. Vice Chairman Ceppetelli indicated the pond was allowed As-Of-Right.
Commissioner Sawka suggested the pond proposed by Mr. Dearborn wasn’t big enough to irrigate 20 acres; Mr. Dearborn indicated that only parts of the property were drying out. Mr. Dearborn then requested clarification that he could have his road; Vice Chairman Ceppetelli noted the Commission was not at the point of saying that yet but he suggested it was possible. Commissioner Warren raised a point of order, noting there was a motion on the floor which needed to be voted on or reopen discussion.
Commissioner Osborn noted the Commission doesn’t know if the present placement of the road is the optimum place; is that the right amount of pipes to take the water across to the other side? He cited concern that the Commission doesn’t know the answer unless it’s engineered. Commissioner Warren noted the Commission is also referring to topography that’s not shown on the plans either. Commissioner Warren also noted that she and previous Wetlands Agent Rudek had walked the property with Mr. Dearborn perhaps 14 months ago. She cited that the activities there and the applications that the Commission has seen are significantly different, and the amount of activity hasn’t matched the permitting. Speaking for herself Commissioner Warren suggested the Commission isn’t here to deny things; they are here to make sure they are protecting the wetlands and the wetlands soils. She noted that even Mr. Logan has said he can’t determine the wetlands at this time because we can’t evaluate the
soils properly now. She further noted the Commission needs that information to make a decision. The Commission bases their decision on the information from the soil scientist, and sometimes the maps change because other conditions in other places change.
Vice Chairman Ceppetelli queried Commissioner Sawka understood the intent of the motion; Commissioner Sawka confirmed that he did. Vice Chairman Ceppetelli requested Commissioner Osborn to restate his motion.
MOTION: To DENY the Use-As-Of-Right for the farm road.
Osborn moved/Warren seconded/
VOTE: In Favor: Osborn/Warren/Sawka/Ceppetelli
Vice Chairman Ceppetelli confirmed that the record states there will be a permitted use for the road portion of that development.
Attorney Needleman requested the Commission make one final motion to formalize that the farm pond is a permitted use As-Of-Right.
MOTION: As proposed the farm pond is a permitted use As-Of-Right.
Warren moved/ Sawka seconded/VOTE: In Favor: Unanimous
REASONS FOR VOTE: Vice Chairman Ceppetelli made his decision based on input from Staff regarding filling of wetlands. Commissioner Osborn made his decision based on the lack of engineering data to tell the Commission that the pipe installation will work under the road. Commissioner Warren based her decision on the fact that she would like to see more specific soil and engineering data. Commissioner Warren also noted that the Planning Department Staff went to the extent of contacting the Town Attorney, and she is comfortable with that information. Commissioner Sawka agreed with the comments made by his fellow Commissioners.
CONTINUED APPLICATIONS OR BUSINESS/B. 93 Rockville Road - Continued application of Emil Demikat for a 3-lot residential re-subdivision. Total parcel is 25.5 acres, served by public water and septic system. (65-day application period ends 4/11/08):
Vice Chairman Ceppetelli read the description of this Item of Business. Appearing to discuss this Application was Todd Clark, of Aeschliman Land Surveying; and the Applicant, Emil Demikat.
Mr. Clark reported this Application is for a 3-lot subdivision on land which presently contains an existing house on 25 acres of land. The Applicant is looking to create two additional building lots, which have frontage on East Road. Access will be provided from Rockville Road, which will make this new lots appear to be rear lots; the driveways for the new lots will be constructed to rear lot standards. Mr. Clark indicated he and Mr. Demikat had met with Wetlands Agent Bednaz and Town Planner Whitten; a result of that discussion was to offer a Conservation Easement of 17 acres behind the existing house. There is a farm field behind the existing house; Mr. Demikat would like to be able to grow crops in that area. One of the new locations would 109’ from the regulated area. Septic systems for both new houses would be outside the regulated area. Lot #1 would contain 4,000 square feet of buildable area outside the flood line, while Lot #2 would have 17,000 square feet of
buildable area. Noting Sheet #5 Mr. Clark indicated the seed mix for the lawns is the same as was approved for Norton’s Crossing.
Wetlands Agent Bednaz indicated that the erosion controls have been revised on the plans, and include grading activity. She noted that they recommended the Conservation Easement because it would the tree line; this approach gives the Applicant the ability to have the two house lots and a field for grazing, etc. Wetlands Agent Bednaz indicated that area had already been graded.
Wetlands Agent Bednaz also noted that the Conservation Easement would not shrink, but may grow larger, when the Applicant appears before the Planning and Zoning Commission (PZC). She reported that the PZC may also ask for Open Space in addition to the Conservation Easement, or take the Conservation Easement as Open Space. One of the lots is located in an area with known endangered species; for that reason this Application may become one lot in the future. Also, the request to farm a portion of the parcel it might not meet the PZC Regulations. Wetlands Agent Bednaz advised the Commission this permit may need to modified to one lot in the future.
Wetlands Agent Bednaz suggested the Commission may want to consider adding an additional condition to the motion to require that the Applicant submit evidence that the Conservation Easement has been filed on the deed. Mr. Demikat question if that requirement would apply to his deed, or the buyers? Vice Chairman Ceppetelli indicated the Conservation Easement needs to be filed on the buyers deed. Commissioner Warren indicated the buyer needs to know there can be no activity in the Conservation Easement.
MOTION: To APPROVE the Application of 93 Rockville Road/Emil Demikat for a 3-lot residential re-subdivision. Total parcel is 25.5 acres, served by public water and septic system, with the condition that notification be sent to the Planning Staff to advise them that the Conservation Easement has been filed on the Land Records.
Osborn moved/Warren seconded/VOTE: In Favor: Unanimous
NEW BUSINESS/A. Discussion Item - Parks and Recreation proposed Town Skate and Dog Park:
Appearing to present this discussion was Melissa Green, Director of Parks and Recreation. She advised the Commission is also speaking on behalf of the Skate Board Park Committee; her discussion will involve a combined use of the property.
Park Director Green noted she is appearing for discussion only at this point, as she wants to hear the Commission’s comments and concerns regarding this proposal before it goes forward. The proposed location for both parks would be on the Kogut property, which is across the street on Reservoir Avenue from the East Windsor Park. Park Director Green submitted a map of the Kogut property which was part of the 2004 Plan of Conservation and Development. The proposal is to develop a Dog Park and Skateboard Park; she has been working with Town Planner Whitten and Wetlands Agent Bednaz to develop this work as a combined project. Both parks would share an access drive, and parking area. Topographic maps of the parcel were just located today; Town Engineer Norton will review them to provide
elevation and field data to assist in finding the most appropriate place for these parks. Park Director Green indicated they are going with a bare bones proposal to be able to get the parks going; the major item for the parks would be fencing. The Skateboard Park would include either concrete or asphalt apparatus, which could be moved or bulldozed later, on a 100’ x 100’ base. They are not proposing anything that could not be taken out at a later date if another purpose was chosen for this parcel.
Park Director Green noted they have received approval from the Board of Selectmen to proceed on to the Inland/Wetlands Commission and the Planning and Zoning Commission for discussion of the Dog Park and the Skateboard Park. She is looking for the Commission’s concerns, and/or comments, before they proceed to the fundraising level. Park Director Green reiterated that the entire Dog Park would be fenced as they don’t want the dogs to run through the wetlands; dog waste disposable bags will also be available for owners to clean up after their dogs. As Park and Recreation staff will be responsible for removal of the waste from the site the department likes the Kogut site as it’s across the street from East Windsor Park where dumpsters are available.
Vice Chairman Ceppetelli questioned if these parks would be outside the regulated area? Wetlands Agent Bednaz indicated that Town Planner Whitten has been working on this project with Park Director Green, but the final location could change pending review of the topographic maps. Both parks would be located in the upland review area; they wouldn’t be closer than 100’ to the actual wetlands. Park Director Green noted that Town Planner Whitten had looked at the maps that were previously available. As the topographic maps were not available the Town received a generous offer from a firm to do the maps. Since that offer was received the original topographic maps have been located and will be reviewed by Town Engineer Norton.
Vice Chairman Ceppetelli suggested that a drainage system would be required because of the impervious area of the Skateboard Park. He would like to keep the park some distance from the slopes so the kids aren’t able to run into the brook. Wetlands Agent Bednaz suggested the drainage could be directed to a rain garden rather than requiring a detention basin. Vice Chairman Ceppetelli questioned what, and how large, the impervious area would be? Park Director Green suggested it would be a 100’ x 100’ area of concrete or asphalt; they are leaning towards a non-fenced in area but there would be shrubbery between the Dog Park. Commissioner Osborn questioned if the Skateboard Park would be supervised? Park Director Green reiterated these are bare-bones proposals to get the
parks in for the residents to use. She noted the proposals have the support of the Police Department.
Commissioner Warren noted that some surrounding towns have pulled similar facilities out. Park Director Green suggested the conditions of several facilities in surrounding towns have deteriorated, either to poor planning before installing them or not thinking the projects through completely. Commission Warren questioned if the kids are involved? Park Director Green replied affirmatively, noting some of the kids that would use the park are on the committee, and have been involved in the website design, meeting with vendors, and proposing draft letters for fundraising.
Vice Chairman Ceppetelli questioned if there would be shared garbage removal to keep litter from blowing into the wetlands? Park Director Green concurred.
Commissioner Warren noted there is much debris dumped back in this location now. Wetlands Agent Bednaz suggested a condition of the lease is for the farmer to restore the area from the overgrowth. Commissioner Warren noted last year’s problem for the park due to the farming activities, and also noted the intent to remind the farmer of using best farming practices this year. Wetlands Agent Bednaz indicated they have talked about cutting back on cutting some vegetation. Vice Chairman Ceppetelli noted how the removal of stumps and brush is down is a big concern. Commissioner Warren suggested that as well as how he deals with the soil contamination from previous uses.
Park Director Green questioned what her next step should be to move the project forward? Vice Chairman Ceppetelli noted the need to design where the parks will be located in relation to the upland review area.
NEW APPLICATIONS TO BE RECEIVED/68 Newberry Road (Steve Dearborn) - Agricultural use, piping an Intermittent water course within wetlands, through two 24” pipes:
MOTION: To ACCEPT/RECEIVE the Application of 68 Newberry Road (Steve Dearborn) for Agricultural use, piping an Intermittent watercourse within wetlands, through two 24” pipes.
Osborn moved/Warren seconded/VOTE: In Favor: Unanimous
MISCELLANEOUS/A. Board Development - Training/Topics Schedule:
It was noted that the Town recently held a meeting on FOI requirements and noted the meeting was a valuable summary refresher course for Commission members and staff. Commissioner Warren requested copies of the pocket-sized brochure be provided for Commission members who might have missed them at the meeting.
It was noted that Rachel Dearborn, engineer for Steve Dearborn, had submitted a letter to amend the Application for 68 Newberry road for a permit for a farm road.
Wetlands Agent Bednaz noted a folder being passed amongst Commission members, the folder contains various information material that comes through the Planning Office. Commissioners are asked to advise her of items they would like to view at length.
Vice Chairman Ceppetelli suggested that a prime objective is the development of a fines ordinance.
AGENT DECISIONS:
Wetlands Agent Bednaz reported that Southern Auto Auction hasn’t yet come in with revised plans for work on detention basins. Commissioner Osborn recalled they said they were waiting for milder weather for their field work.
VIOLATIONS (for action or show-cause hearing):
Wetlands Agent Bednaz reported she has a couple of properties she plans to investigate. One property has an issue of historic wetlands filling and encroachment and permit use issues; the other property is expanding parking into a ravine.
STATUS REPORTS/A. Planning and Zoning Review:
PZC Agenda containing actions taken has been provided in the Commission’s packet.
STATUS REPORTS/B. 246 South Main Street - Jim Balch permit update:
Wetlands Agent Bednaz reported she is keeping on the DEP process; she has recently spoken with Pete Spandenberg of DEP. DEP issued a letter outlining a time line and schedule for compliance. Mr. Ussery, of J. R. Russo & Associates, reported plans had been submitted to DEP. Wetlands Agent Bednaz requested DEP supply her with a copy of an additional being sent to the owner for the Planning files.
STATUS REPORTS/C. Wetland Fee Schedule Update:
Wetlands Agent Bednaz reported the Wetlands Fee Schedule has been reviewed by the Town Attorney. If the fees are reasonable from the perspective of the cost of review and processing then they are supportable legally. Wetlands Agent Bednaz is now going before the Board of Selectmen (BOS) at the earliest date; if approved by the BOS the fee schedule would then go to Town Meeting.
Commissioner Warren requested the Natural Resources Preservation Committee be added to monthly Commission Agenda under Status Reports. The Committee has been extended for another 18 months; Commissioner Warren would like to give this Commission updates of their work.
CONFERENCES/SEMINARS/TRAINING/A. Municipal Inland Wetlands Commissioners Training Program - Sign up:
Commissioners are asked to advise Wetlands Agent Bednaz if they would like to attend the captioned conference.
CORRESPONDENCE:
Wetlands Agent Bednaz noted letter in the Commission’s packet regarding the Wilcox property. A complaint had been made that material containing a film of sediment was running off the Wilcox property onto the Dearborn property. Wetlands Agent Bednaz reported that on review of the situation the sediment film was occurring in the ponding area next to the road on the Dearborn property. The erosion was not happening from stockpiles; it was natural run off from the hill. There is no immediate threat to any resource area.
ADJOURNMENT:
MOTION: To ADJOURN this Meeting at 9:45 p.m.
Sawka moved/Osborn seconded/VOTE: In Favor: Unanimous
Respectfully submitted:
________________________________________________________________________
Peg Hoffman, Recording Secretary, Conservation Commission/Inland Wetlands and Watercourse Commission
| 
