Attendance: Carl Shreder, John Bell, Mike Birmingham, Paul Nelson, Charles Waters, Steve Przyjemski, and Sharon Munro.
Signing:
- Reappointment for Keith Reardon for Camp Denison Committee
MOTION to re-appoint Keith Reardon for the Camp Denison Committee. John B. /Charles all/unam
-OoC for Pine Plain Road
-Neg. Deter. For 275 Central Street - signed
-Letter to attest true copies for Bartlett case
-Letter regarding Open Space Plan approval
Approval:
Meeting minutes for: 6/26, 7/10 and 8/7.
MOTION to approve meeting minutes. Charles/ John B. /Mike Birmingham/Carl
Paul abstains
MOTION to authorize Steve P. to request a new check and give to Delaney for the general fund. Charles/ John Bell all/unam
Carl abstains
MOTION to authorize an AM meeting with Don Anderson, the Camp Denison manager, with a couple of Commissioners and Steve, the agent, to report back to the Commission. Charles/ John B. all/unam
Discussion:
129 Elm Street (Discussion)
In attendance:
Kurt Young of Wetland Preservation
Denise Brogna attorney for applicant
Kurt Young of Wetland Preservation Inc. – The site plan I have just put up is the approved site plan from the DEP review, it is the one you all looked at during the public hearing process…in the hearing. I think you have had an explanation of that but if you need further explanation I would be more than happy to go through it with the board. On the back side of the board is what we have termed the alternative plan from a design stand point. We felt this was an appropriate plan for moving forward. The project has a design plan the uses a slightly different, now approved, septic design called the Presby system. It offers an opportunity to reduce the setbacks to the wetland areas. So, they are very close to the 100 foot setback which is what you folks have for septic systems as well as the Georgetown Board of Health. The site plan
that we proposed also as the alternative site plan has much restricted grading in the back of the house it is basically restricted to the sides of the house and doesn’t require grading to the extent that the site plan that was approved by the DEP.
Carl Shreder, GCC – Before we get too far into the new plan, I would like to address the court’s comments and concerns and address the remand hearing to make sure we hit everything on that requirement.
Charles Waters, GCC – I have a copy of it here. I take it as the court wants us to do two things. First, the defendants are to consider the State’s findings and shall articulate their findings why the application of the plaintiff is in violation of the regulations of the Town of Georgetown and second, the defendant shall articulate the reasons for not accepting certain pieces of evidence offered by the plaintiffs. Are we in agreement in those two areas?
Denise Brogna, Attorney – I don’t have the copy here in front of me but, my recollection was that the court wanted to have a hearing rather not it was a public hearing or not, I agree it is not articulated in the order, and you are to consider the state’s findings, which I believe you already have at this point and articulate why the application of the plaintiffs is in violation of the regulations and that would be the original application, being what Mr. Young has presented here in front of you right now on the board. So, yes, I agree that is a fair reading of the order.
Charles Waters, GCC – Well, let’s …
Denise Brogna, Attorney – Are you going to address that?
Charles Waters, GCC – We should just start with one at a time so, the defendants are to consider the state’s findings. So, that’s the DEP order, right?
Denise Brogna, Attorney – The state’s findings would be the state’s overriding of the order of conditions, we don’t have any problem with this.
Charles Waters, GCC – So, to begin, there should be some discussion about the DEP order and articulate why the Commission didn’t consider it and first off I think there is a real obvious reason why…
Carl Shreder, GCC – The State’s order was after the hearing so, we couldn’t consider something that had not occurred, yet.
Charles Waters, GCC – …and the State’s statute of course, are different than and less restrictive than the local Bylaw and I think those are two reasons that come to my mind right off the bat. Are there any other? We also didn’t have it. Not that that would have made a difference with our local bylaw. It was an impossibility to consider. The second part of that first area is that the Commission should articulate in their findings why the application of the plaintiffs is in violation of the regulations of the Town of Georgetown. By that part, I presume that the court expects us to issue findings. Which we are going to do once we close the remand hearing but, by that word “findings” I am presuming that it is something in writing that the Conservation Commission will issue and will articulate why the
application of the plaintiffs is in violation, in that finding. I think it will probably will be helpful to have that discussion here also in addition to the written findings and from my own personal perspective, to me it appears that the proposed project has impervious parking at 55 feet, there is a 75 foot No-Build setback from the BVW, a pervious building at 38 feet, same 75 foot No-Build setback, grading at 10 feet and construction of a wall at 15 feet which is another violation of the 50 foot no-cut/no disturb setback and the sanitary disposal system at 33 feet which is another violation of the 100 foot septic system setback. From my perspective, that articulates the reasons, why I personally believe, that the plan falls well short of the local bylaw. If there is any other reason why the commission agrees or disagrees with that…
Denise Brogna, Attorney – May I ask a question?
Carl Shreder, GCC – You may.
Denise Brogna, Attorney – Even though it doesn’t comply with your setbacks. What evidence do you have that it adversely impacts the wetlands?
Carl Shreder, GCC – From a number of years of experience of seeing the end result of some these projects.
Denise Brogna, Attorney – But you have a wetland scientist who told you that it doesn’t have any impacts on the wetlands.
Carl Shreder, GCC – And what evidence does he have that it won’t?
Denise Brogna, Attorney – Would you like to speak for that?
Carl Shreder, GCC – Could you quantitatively tell me that it’s not going to cause damage to wetland resources, instead of just telling me it is not going to.
Kurt Young of Wetland Preservation Inc. – Sure, the design of the house and septic system is compliant with the DEP requirements for the setbacks. They have approved the project as having no impact on wetland areas. That’s based on a lot more years of experience there at the DEP than, I dare say, than can be provided by this commission. I am not trying to say anything derogatory about this commission I am just saying that they have a significant more experience. I have number years of experience as well, dealing with these things and dealing with the Georgetown environment. From the stand point of the design of this house there is nothing to suggest a definitive likelihood or risk to the wetland area.
Carl Shreder, GCC – That is qualitative.
Kurt Young of Wetland Preservation Inc. – I think if you understand the science you understand that there is no quantitative way to do that but if you have a way to do that I would be interested in hearing what you have to say with regard to that. Except, to have somewhat of a eh a setback that’s arbitrary and established for everybody in town because that’s what works and I would say at this particular site, it doesn’t work because it is a site with very flat grades associated with it and the construction proposed is sensitive to those issues … at the site.
Carl Shreder, GCC – You have just said there is no quantitative way to do that.
Kurt Young of Wetland Preservation Inc. – I said, I would like to see if you have another way to do that other than arbitrarily…
Carl Shreder, GCC – I have asked you for a quantitative method.
Kurt Young of Wetland Preservation Inc. – All of the setbacks that we can see, based on experience, allow for a very simple construction of this house. It is not a big house; it is a very small house as a matter of fact. The septic system is compliant with DEP requirements and regulations. I think if you want it quantitative basis you would say, “What’s DEP said about it?” and I think they provide a vote, a strong vote, a demonstrative vote that it’s not going to have an impact on the wetland areas.
Charles Waters, GCC – When you say that the design of this house is somehow special, could you describe that more? How that’s special and different than other designs?
Kurt Young of Wetland Preservation Inc. – Sure, the house with the lot is relatively flat. The house construction that we have proposed, in the proposed design that the DEP ruled on and even in the one we proposed in the alternative, both provide for grading and erosion control barriers that would protect that area during construction. There is no, what I would call, risk. There’s no direct impact for one thing and the risk of impact to the wetland area is reduced due to the fact that this house is small relative to this lot. The grading isn’t excessive. It doesn’t require great steep slopes going right down to the edge of the wetland and I think construction methodologies today can control that site very well.
Charles Waters, GCC – But everything you have just said to me sounds like every other plan we have before us. There is nothing really extraordinary or unusual about what you are describing as the design of the house that would make me think that this is any different analysis than what we typically look at.
Kurt Young of Wetland Preservation Inc. – I can appreciate that you might feel that way but the house itself and the property, the location of the house is right against the street to the degree we can move it and the side slopes on the lot as it exists and are proposed are not excessive because the house is relatively small, toward the street and away from the wetland area. It does differ quite a bit from a lot of other houses we see on lots that have building footprints that are large and also push the limits of the grading that you could do on a property without expecting to have significant run-off and erosion problems.
Charles Waters, GCC – You have a house on a small lot that has resource areas literally all around it.
Kurt Young of Wetland Preservation Inc. – Well, they aren’t really all around but you certainly have them on two sides.
Charles Waters, GCC - …and I don’t really see that anything about… for example the parking at 55 feet that’s anyhow special that qualifies for not having the same impact on the resources than any other plan with parking at 55 feet, a building at 38 feet, or grading at 10 feet and a septic at 33 feet. We never have septic at 33 feet. We never approve plans like that.
Kurt Young of Wetland Preservation Inc. – I don’t think you will find…I don’t think you have measured that correctly with regard to the …(either septic or wetlands)
Charles Waters, GCC – Where do you think the septic is? And I’m talking about the old plan.
Kurt Young of Wetland Preservation Inc. – I understand that. Let me take a look at that.
Paul Nelson, GCC – I think you’re talking about the primary and the secondary, too, right?
Charles Waters, GCC – Yup.
Kurt Young of Wetland Preservation Inc. – The reserve system is within the 75 foot buffer. So, it’s not. I think you said 37 feet and my point would that it is 75 feet. So, your statistics seem to be incorrect. Do you know where you got the information from?
Steve Przyjemski, Agent – That’s based on the plan that was submitted. There was a revision after that…that was never…it was just thrown out there. So, it was all based on the current plan.
Charles Waters, GCC – What is the plan that we voted on?
Steve Przyjemski, Agent – The first one.
Charles Waters, GCC – So, are you referring to the plan that we voted on?
Denise Brogna, Attorney – We don’t know what plan you voted on because we were asked during the public hearing while it was still open to come up with another plan which is what we thought you voted on but I guess your Agent just said you didn’t vote on this plan.
Steve Przyjemski, Agent – I don’t know what plan that is. (Referencing plan in front of KY)
Carl Shreder, GCC – Isn’t that the plan you brought in last week?
Denise Brogna, Attorney – No, this is the one we brought up when the original engineer was on the project. You asked him to come up with something better. So, he did. And this was the something better, at your request.
Charles Waters, GCC – The only thing I am really concerned…or …interested in is what we voted on. Now, when we vote we always vote on a plan.
Steve Przyjemski, Agent – I think it is also…It doesn’t meet the regulations. So, within 100 feet no septic, no new septic within 100 feet.
Charles Waters, GCC – It’s the same issue but the larger picture here is what plan. Why do you have a plan in front of you that we think we didn’t vote on?
Kurt Young of Wetland Preservation Inc. – There was an alternative plan that was given to you that sort of flipped the house and the driveway and moved the septic system so that it’s all right up against the road and did not consider, in what I would consider in a sensitive way, the presence of a drainage channel that is located on the side of the property and that was part of the thought process that the commission had at that point in time was to see what we could do to reduce the setback to the back and we did. But that does end up with a setback of 32 feet to the side wetland for the reserve portion of the…actually the primary portion of the septic system not something I would ever expect this commission would ever gravitate towards.
Steve Przyjemski, Agent – What was the date on that plan?
Denise Brogna, Attorney – October 19, 2006.
Carl Shreder, GCC – We always vote on a plan with a date and its revision.
Kurt Young of Wetland Preservation Inc. – But that was an alternative that I would be very surprised if this commission would entertain something because of the setback of the primary system that would not comply with the state setback for septic systems. So, from that stand point we would never present that as a site plan that would be preferred.
Charles Waters, GCC – I would like some clarity on what plan we voted on because….
Denise Brogna, Attorney – Unfortunately, your minutes in your administrative record don’t tell us what plan you voted on.
Charles Waters, GCC – And the minutes don’t state a certain dated plan?
Denise Brogna, Attorney – No.
Paul Nelson, GCC – That’s hard to believe.
Charles Waters, GCC – That is hard to believe.
Paul Nelson, GCC – Mr. Chairman, I think we can get wrapped around the axle on this one I think that we should deal with the remand and then if they want to re-file with an amended or new plan…
Carl Shreder, GCC – Well, actually we essentially are. We are getting a little too in depth on this.
Paul Nelson, GCC – This is not set up as a hearing so if we want to discuss this in a full manner then we need to have some time allocated to it and not have everyone else that is in the audience that has hearings put off.
George Pucci of K & P – Actually, your Order of Conditions does state the date of the plan that was accepted. It is stated here as 9/7/06 plus 10/19/06.
Denise Brogna, Attorney – So, you voted on both of them.
Paul Nelson, GCC – So, anyway, before I was interrupted, can we actually close this remand off by just indicating….based on discussions we just had we know exactly what we have to do for the judge and move forward into the next…
Carl Shreder, GCC – We were just in the process of articulating that.
Paul Nelson, GCC – Well, without having a plan in front of you that’s exactly what they are taking about…. If you don’t have the information in front of you don’t know what they are talking about and so you can’t really discuss this intelligently. And I don’t think from the remand perspective I don’t think there’s that requirement.
Charles Waters, GCC – Well, no, Paul, there is a requirement to discuss things intelligently and to be fully informed. So, I don’t agree with you respectfully and I think we should dig in and finish this up in the proper way and not cut it short. Now, if our….
Paul Nelson, GCC – What I am saying is that this is not a good way to run a meeting. This could go on for another hour or hour and a half.
Charles Waters, GCC – If this goes on for another hour then this goes on for another hour, it is our business and we have to conduct it. What we do is we try to schedule hearing times and estimate them the best way we can. We are here, council is here, the applicant has been here now twice and I think we have to get this done.
Paul Nelson, GCC – I don’t feel comfortable trying to discuss with the applicant all the decisions we have made when I don’t even have the plans in front of me. I don’t think that rational.
Carl Shreder, GCC – Well, we have some of the information and we don’t have to go over the entire hearing.
Paul Nelson, GCC – We have the findings.
Carl Shreder, GCC – I think that’s all we are required to talk about.
Paul Nelson, GCC – But that is what we are getting wrapped up about because the applicant is saying that that can’t be right because really we are using this plan and the septic is really at this number versus what we have in ours so clearly there is a difference here.
Steve Przyjemski, Agent – Neither one of the plans meets the regulations, either.
Paul Nelson, GCC – Yes, neither one of the plans meets the regulations, which is another issue.
Charles Waters, GCC – Well, it is an important issue. I think the fact is rather its 33 feet or …Sir. What did you say was on the other plan?
Kurt Young of Wetland Preservation Inc. – At least 75 feet.
Charles Waters, GCC – 75? I mean its supposed to be, as you know, 100 feet with new construction and its not something…well since I have been on the Conservation Commission we haven’t permitted new construction within less than 100 feet. And I haven’t heard anything, I mean the Presby system, we’ve seen the Presby system over and over again it’s not a special design that qualifies for less than 100 feet distance from the resources.
Kurt Young of Wetland Preservation Inc. – No, it is better in the stand point of your interests which would seem to make it ah….
Charles Waters, GCC – Well, we deal with Presby systems all of the time. I mean, there is nothing unique about the Presby system as far as the way we see it and since I’ve been on this commission we have not once allowed new construction with a septic system within 100 feet and I haven’t heard anything from you that would suggest that we should suddenly start with this project.
Kurt Young of Wetland Preservation Inc. – I think that you have to look at the DEP requirements and recognize that they have been in business for a long time and accept that 50’ is an adequate setback for a septic system of this nature.
Charles Waters, GCC – You know we don’t say that, you know the bylaw says 100’ and we’ve got the right to enforce our Bylaw which as you know has to be more restrictive than the state statute. So, I understand what DEP says and I think that after the hearing and after the denial of the plan you got DEP’s response. It doesn’t affect our interpretation of our Bylaw and our interest in not permitting new construction with septic within 100’, let alone, 75’ or even 33’.
Denise Brogna, Attorney – But your Bylaws also say that you must assess rather or not there is an impact to the wetlands and also weight if there is a hardship to the applicant. You haven’t done that.
Charles Waters, GCC – Oh, yes we have. We have done that.
George Pucci, K & P – That is actually not true Denise. Their Bylaw treats the 100’ setback as a resource area. So, I don’t think you should continue a legal argument back and forth.
Charles Waters, GCC – There is a presumption related to the resource area and that presumption is on the applicant.
Denise Brogna, Attorney – And we have said that it does not impact the resource area.
Charles Waters, GCC – I know. Every applicant says it doesn’t affect the resources and there is a burden…
Denise Brogna, Attorney – …and you have an expert report with data in it.
Charles Waters, GCC – I understand and what he said is that the design according to DEP standards makes this not detrimental to the resources and I am not disputing his statement that the DEP is okay with the design. The DEP has its statute, we have ours and we are enforcing ours which is more stringent.
Denise Brogna, Attorney – But I am asking you, “What evidence do you have that it impacts the resource area”? What evidence do you have? I mean, other than years of experience I don’t know what you’re….but I am asking you what evidence you have of impact. Because if you don’t have that…
Carl Shreder, GCC – I think I asked that question of you, too.
Denise Brogna, Attorney – But I don’t know what your years of experience are, Sir. Really, I don’t.
Carl Shreder, GCC – I have been in the Environmental field for more 20 years.
George Pucci, K &P – I have to interject! You really don’t have the right to cross examine them, this is a remand hearing. Their 100’ setback is a resource area and you’re proposing to put a house in the resource area so…
Charles Waters, GCC – So, let’s get back to the remand order. I think we have articulated why the application of the plaintiffs is in violation of the regulations of the Town of Georgetown. The second part is the defendant shall articulate the reasons for not accepting certain pieces of evidence offered by the plaintiffs. The way I read this order, the court wants to know why we didn’t accept, essentially the DEP Superseding order, and that is how I read this and I think it is the same reason we have already stated. We didn’t accept it because it didn’t exist and the DEP has different standards than our local bylaws so, for those two reasons, at least from my personal perspective, for those two reasons that’s why we didn’t quote on quote accept the DEP Order.
George Pucci, K & P – I should state for the record because I am here representing the Commission because this is in litigation, as far as this remand I agree, that’s how I read this order, it clearly applies to the Superseding order of Conditions because that was the context of the hearing, was the issue of the propriety of plaintiff relying on the Superseding Order and its motion for judgment on the pleadings that he issued this remand Order. So, that’s the way I would interpret this order, as well.
Denise Brogna, Attorney – The other point I would like to make is the question you asked me last time, is “What evidence besides the DEP order did I think you did not consider?”, and that was his expert opinion of no impact. So, that was the point I made last week and I wish to make that again.
Charles Waters, GCC - …and we have and I think we just spent ten or fifteen minutes talking about that same point so I don’t think we need to reiterate all the arguments but we heard what he said I wrote it down…
Carl Shreder, GCC – We appreciate it.
Charles Waters, GCC - …we have considered it, we have responded to it and now what I’d like to do, unless any commissioners have any other thoughts on this remand hearing, I would like to close the remand hearing.
Kurt Young of Wetland Preservation Inc. – If I could just interject a couple of things before you go to that point. We did provide you with a wildlife habitat evaluation which specifically identified the characteristics of that wetland area and the fact that our activities on that lot will not have an adverse effect on important wildlife habitat. I think that is important to have that on the record. The other aspect is; I understand you to say that the setback on the septic system is 100’ from a resource area or a wetland, is that correct?
Charles Waters, GCC – I don’t know where we are going, I just moved…
Kurt Young of Wetland Preservation Inc. – I am just trying to get a clear indication of your bylaw…
Charles Waters, GCC - …but what you are doing is now going back into a discussion that we had for 15 minutes about these issues and as far as I am concerned, we have now done what the Remand order tells us to do and I want to and I will move to close the remand hearing pursuant to the Remand Order.
Kurt Young of Wetland Preservation Inc. - So, you are not looking for discussion of what your local bylaw was…
Charles Waters, GCC – What I don’t want to do is have another 15 -20 minutes discussion about the same issues that we have already talked about and that’s where I hear you going, is to another conversation about what we’ve just talked about.
Kurt Young of Wetland Preservation Inc. – You stated in your dissertation that you had a 100’ setback to wetlands, I believe that is what I heard stated for septic systems in your local bylaw, then I heard from council and as well as you folks that you have considered the buffer zone as a resource area. So, my question is, “Is it 100 foot setback from a wetland resource area or a 100’ setback from a resource area?”
George Pucci of K & P – The bylaw speaks for itself. If you want a copy you can read it. Again, you are not here to cross examine the Commission.
Kurt Young of Wetland Preservation Inc. – I was trying not to. I was trying to get some clarity because the statement was made by you as well as the commission.
George Pucci of K & P – The Bylaw is clear that both statements were correct. But if you want to read it I have a copy of the Bylaw.
Charles Waters, GCC – The important point is that it is a resource area.
John Bell, GCC – Can I second that motion?
Kurt Young of Wetland Preservation Inc. – What is?
Denise Brogna, Attorney – The setback.
Carl Shreder, GCC – There was a motion?
Charles Waters, GCC – There was.
Carl Shreder, GCC - …and it has been seconded?
John Bell, GCC – Yes.
Carl Shreder, GCC – Is there any further discussion?
Carl Shreder, GCC - …and that motion was to close the Remand hearing. Is there any further discussion?
Paul Nelson, GCC - …and provide a document.
Carl Shreder, GCC - …and provide a document within a set of time?
Charles Waters, GCC – Council, is 30 days adequate?
George Pucci of K & P – I think it is. I don’t think there is any date called for. I think that tenor of this Order of Remand I think it clearly contemplates some sort of written decision for the judge to look at but it doesn’t give a time limit. I would say 30 days is reasonable. What do you think council?
Denise Brogna, Attorney – Our next date in court is October 2nd so…
Charles Waters, GCC – So, let’s make that 21 days.
Charles Waters, GCC – So, amend the motion to state that the Commission will issue written findings in 21 days of the close of this Remand hearing.
MOTION to amend motion to state that the Commission will issue written findings within 21 days of the close of this Remand hearing. Charles/John B. all/unam
Carl Shreder, GCC – The motion has been re-seconded to issue the finding within 21 days of the Remand hearing. Is there any further discussion?
Charles Waters, GCC – There is one other issue with these folks. They have…they sent in a plan last time and we sort of left it up in the air. We received it but didn’t accept it and in the end you didn’t want us to vote on rather we thought that there was a significant change in the plan pursuant to our Bylaw but I think we should offer the plaintiff in this litigation the opportunity to at least take a stand on that issue.
Carl Shreder, GCC – What do you want us to do with the new plan?
Denise Brogna, Attorney - As far as I am concerned, you can give them back right now.
Charles Waters, GCC - …and not vote on it? Do nothing?
Denise Brogna, Attorney – I think we are done discussing this issue.
Charles Waters, GCC – Okay.
Denise Brogna, Attorney – So, if you want you can hand over the plans or keep them in your record.
Charles Waters, GCC – Okay.
Hearings:
8-10 Pine Plain Road
Gary Sacriter, Atty. – We wanted some direction as to where to go from here.
Carl Shreder, GCC – We did receive the plan. Please give us a moment.
MOTION to accept NOI plan dated 8/5/08 for 8-10 Pine Plain Road. Paul/Mike B. all/unam
MOTION to close hearing. John B. / Mike B. all/unam
AMEND MOTION to state the revised plan date 7/14/08. Paul/Charles all unam
3 Canterbury Drive
Mike Seekamp & Joe C.
Mike Seekamp, Rep. – This house was built in the 1960’s and the main reason for us filing is for repair to the septic system but the applicant would like to repair the pool house while this work would be done.
Carl Shreder, GCC – is the system in failure?
Joe C. – it is my understanding that the system must be repaired to sell the house.
Carl Shreder, GCC – Has the BOH approved this?
Mike Seekamp, Rep. – I don’t have that yet.
Charles Waters, GCC – Is this worth a site visit?
Steve Przyjemski, Agent – The only thing is that cross wall that could pose a problem with erosion. We haven’t heard from the DEP at this point, anyway.
Paul Nelson, GCC – So, the closest you could get is 10’.
Charles Waters, GCC – Please, include a detail on the protocol on the pool- house work.
Carl Shreder, GCC – So, we are only waiting on the DEP.
MOTION to cont to Sept 18th @ 7:15pm John B. /Mike B. all/unam
10 Martel Way and Searle Street Rear
Jim Dimento for Park & Recreation
Steve Przyjemski, Agent – This has been a straight forward delineation and in this particular case I worked with the scientist who did this for them and I’m pretty happy with what is out there. The com could request a site walk at this point.
Charles Waters, GCC – So, are we fine with this plan that we have?
Steve Przyjemski, Agent – The other thing the commission could request is a site walk. I mean, in these circumstances….
Carl Shreder, GCC – Yes, often in these situations an applicant who has had a delineation done, will want us to take a walk to take a look at the lines.
Jim DiMento, PRC – My only concern was how much of the wetlands were out there. It seems it is what it is and I am accepting of this.
Charles Waters, GCC – So, it doesn’t seem there is anything more that we need to do.
MOTION to approve the delineation on plan dated 08/08/08 at flags A12-A62, B02-B117, and C8-C10 and the resources associated. Also, to issue an ORAD on said parcel. Charles/ John B. all/unam
MOTION to close hearing. Mike B. /Charles all/unam
10 Searle Street
Dean Chongris present
Paul Nelson, GCC – The deed has been circulated to discuss changes and the applicant has not seen this yet. We are waiting on K & P.
Charles Waters, GCC – So, there is a potential that we approve the plan with stipulations and the town votes to do something entirely different than what we would like to do with this parcel.
Carl Shreder, GCC – We should be able to ensure mitigation on something that we are handling.
Mike Birmingham, GCC – This is going to Town Meeting for a vote irregardless.
Charles Waters, GCC - I think we could in the language that the applicant takes the risks.
Charles Waters, GCC – The terms would be that the supplicant would be restoring …..
Dean Chongris – I have used mitigation of land before and it seems the use of the land is more of a concern than who owns it. However, before this does go to Town Meeting perhaps we should protect the land with a CR.
Charles Waters, GCC – That gives us less flexibility and ideally we should move to do this after this has gone to the Town Meeting.
Dean Chongris – What about a deed restriction before it goes to Town Meeting? We can bring it in with whatever restrictions you would want.
Charles Waters, GCC – What if Park & Rec. gets the land? What are they going to do with it then?
Dean Chongris – We can make this clear as to what is P & R and what is Con Com land and the restrictions can be put on the Con Com land only and this is made clear before this goes to Town Meeting. So, what we solidify on the deed here and then they can not make any changes at that point. It is either accepted or not.
Dean Chongris – Doing in this process we will carry the deed until this goes to Town Meeting.
Charles Waters, GCC – Initially, this was all about Park & Rec. getting some land and we were getting our parcel for mitigation on significant waivers.
Charles Waters, GCC – You should have your real-estate attorneys to propose something related to the easement and or the CR. So, we can have time to review this and a back up plan if the plan fails at Town Meeting.
Dean Chongris – We could put in a Conservation Easement to make this clean and easy.
Charles Waters, GCC – But how easy is it to get out of that?
Dean Chongris – We can’t, if it is recorded with those restrictions it can not be appealed.
Paul Nelson, GCC – If it is not worded properly then it could go wrong.
Carl Shreder, GCC – There has to be an easier way to do this!
Dean Chongris – How about a bond? We can offer you the land as a bond.
Steve Przyjemski, Agent – This might be a better option.
Dean Chongris – I would like to move forward.
Charles Waters, GCC – Are you in a time frame on this?
Dean Chongris– Yes, I actually have a buyer for the house on the property and it is contingent on this order.
MOTION to accept the NOI for plan dated 09/12/07 and revised plan dated 04/28/08. Conditions: that this OoC is issued with the directive that the deed for the land being gifted to the Conservation Commission as indicated in the plot plan dated 5/29/08 will be properly registered by the applicant upon approval of Town Council if required as a motion of Town Meeting. Two: If the land transferred to the Conservation Commission does not take place this OoC is Null and Void and the property must be returned to the original state or the applicant must come before the Con Com to renegotiate. Three: If the land transferred to the Con Com does not take place due to the action of Town officials or an action of the Town Meeting this OoC will remain valid as long as the applicant re-opens the
negotiations to actually create a deed restriction or similar mechanism to insure that the property is properly protected. Paul / John B.
Carl Shreder, GCC – Is there a second to this motion?
John Bell, GCC – Second.
Charles Waters, GCC – I don’t like the language. I would like to take more time on this and make sure we word this more cleanly and we really want to include the Park & Rec. land on this. To be sure they do get there parcel the way we discussed.
Steve Przyjemski, Agent – I will draft the OoC for the next meeting.
Dean Chongris – You tell me what you want and I’ll get it.
Steve Przyjemski, Agent – We have a deed that just needs to be finalized and if we can come up with the language we need for the OoC.
Charles Waters, GCC – Circulate the language and we can all come to an agreement on. I want real leverage to negotiate further.
Paul Nelson, GCC – Withdraws motion.
Charles Waters, GCC – By next Thursday Paul could you have this language out to Con Com by Wednesday. We should comment and have it out to the applicant to review for a week.
MOTION to cont. to Sept. 18th @ 7:59pm Mike/Charles all/unam
Attendance: Carl Shreder, John Bell, Mike Birmingham, Paul Nelson, Charles Waters, Steve Przyjemski, and Sharon Munro.
Signing:
- Reappointment for Keith Reardon for Camp Denison Committee
MOTION to re-appoint Keith Reardon for the Camp Denison Committee. John B. /Charles all/unam
-OoC for Pine Plain Road
-Neg. Deter. For 275 Central Street - signed
-Letter to attest true copies for Bartlett case
-Letter regarding Open Space Plan approval
Approval:
Meeting minutes for: 6/26, 7/10 and 8/7.
MOTION to approve meeting minutes. Charles/ John B. /Mike Birmingham/Carl
Paul abstains
MOTION to authorize Steve P. to request a new check and give to Delaney for the general fund. Charles/ John Bell all/unam
Carl abstains
MOTION to authorize an AM meeting with Don Anderson, the Camp Denison manager, with a couple of Commissioners and Steve, the agent, to report back to the Commission. Charles/ John B. all/unam
Discussion:
129 Elm Street (Discussion)
In attendance:
Kurt Young of Wetland Preservation
Denise Brogna attorney for applicant
Kurt Young of Wetland Preservation Inc. – The site plan I have just put up is the approved site plan from the DEP review, it is the one you all looked at during the public hearing process…in the hearing. I think you have had an explanation of that but if you need further explanation I would be more than happy to go through it with the board. On the back side of the board is what we have termed the alternative plan from a design stand point. We felt this was an appropriate plan for moving forward. The project has a design plan the uses a slightly different, now approved, septic design called the Presby system. It offers an opportunity to reduce the setbacks to the wetland areas. So, they are very close to the 100 foot setback which is what you folks have for septic systems as well as the Georgetown Board of Health. The site plan
that we proposed also as the alternative site plan has much restricted grading in the back of the house it is basically restricted to the sides of the house and doesn’t require grading to the extent that the site plan that was approved by the DEP.
Carl Shreder, GCC – Before we get too far into the new plan, I would like to address the court’s comments and concerns and address the remand hearing to make sure we hit everything on that requirement.
Charles Waters, GCC – I have a copy of it here. I take it as the court wants us to do two things. First, the defendants are to consider the State’s findings and shall articulate their findings why the application of the plaintiff is in violation of the regulations of the Town of Georgetown and second, the defendant shall articulate the reasons for not accepting certain pieces of evidence offered by the plaintiffs. Are we in agreement in those two areas?
Denise Brogna, Attorney – I don’t have the copy here in front of me but, my recollection was that the court wanted to have a hearing rather not it was a public hearing or not, I agree it is not articulated in the order, and you are to consider the state’s findings, which I believe you already have at this point and articulate why the application of the plaintiffs is in violation of the regulations and that would be the original application, being what Mr. Young has presented here in front of you right now on the board. So, yes, I agree that is a fair reading of the order.
Charles Waters, GCC – Well, let’s …
Denise Brogna, Attorney – Are you going to address that?
Charles Waters, GCC – We should just start with one at a time so, the defendants are to consider the state’s findings. So, that’s the DEP order, right?
Denise Brogna, Attorney – The state’s findings would be the state’s overriding of the order of conditions, we don’t have any problem with this.
Charles Waters, GCC – So, to begin, there should be some discussion about the DEP order and articulate why the Commission didn’t consider it and first off I think there is a real obvious reason why…
Carl Shreder, GCC – The State’s order was after the hearing so, we couldn’t consider something that had not occurred, yet.
Charles Waters, GCC – …and the State’s statute of course, are different than and less restrictive than the local Bylaw and I think those are two reasons that come to my mind right off the bat. Are there any other? We also didn’t have it. Not that that would have made a difference with our local bylaw. It was an impossibility to consider. The second part of that first area is that the Commission should articulate in their findings why the application of the plaintiffs is in violation of the regulations of the Town of Georgetown. By that part, I presume that the court expects us to issue findings. Which we are going to do once we close the remand hearing but, by that word “findings” I am presuming that it is something in writing that the Conservation Commission will issue and will articulate why the
application of the plaintiffs is in violation, in that finding. I think it will probably will be helpful to have that discussion here also in addition to the written findings and from my own personal perspective, to me it appears that the proposed project has impervious parking at 55 feet, there is a 75 foot No-Build setback from the BVW, a pervious building at 38 feet, same 75 foot No-Build setback, grading at 10 feet and construction of a wall at 15 feet which is another violation of the 50 foot no-cut/no disturb setback and the sanitary disposal system at 33 feet which is another violation of the 100 foot septic system setback. From my perspective, that articulates the reasons, why I personally believe, that the plan falls well short of the local bylaw. If there is any other reason why the commission agrees or disagrees with that…
Denise Brogna, Attorney – May I ask a question?
Carl Shreder, GCC – You may.
Denise Brogna, Attorney – Even though it doesn’t comply with your setbacks. What evidence do you have that it adversely impacts the wetlands?
Carl Shreder, GCC – From a number of years of experience of seeing the end result of some these projects.
Denise Brogna, Attorney – But you have a wetland scientist who told you that it doesn’t have any impacts on the wetlands.
Carl Shreder, GCC – And what evidence does he have that it won’t?
Denise Brogna, Attorney – Would you like to speak for that?
Carl Shreder, GCC – Could you quantitatively tell me that it’s not going to cause damage to wetland resources, instead of just telling me it is not going to.
Kurt Young of Wetland Preservation Inc. – Sure, the design of the house and septic system is compliant with the DEP requirements for the setbacks. They have approved the project as having no impact on wetland areas. That’s based on a lot more years of experience there at the DEP than, I dare say, than can be provided by this commission. I am not trying to say anything derogatory about this commission I am just saying that they have a significant more experience. I have number years of experience as well, dealing with these things and dealing with the Georgetown environment. From the stand point of the design of this house there is nothing to suggest a definitive likelihood or risk to the wetland area.
Carl Shreder, GCC – That is qualitative.
Kurt Young of Wetland Preservation Inc. – I think if you understand the science you understand that there is no quantitative way to do that but if you have a way to do that I would be interested in hearing what you have to say with regard to that. Except, to have somewhat of a eh a setback that’s arbitrary and established for everybody in town because that’s what works and I would say at this particular site, it doesn’t work because it is a site with very flat grades associated with it and the construction proposed is sensitive to those issues … at the site.
Carl Shreder, GCC – You have just said there is no quantitative way to do that.
Kurt Young of Wetland Preservation Inc. – I said, I would like to see if you have another way to do that other than arbitrarily…
Carl Shreder, GCC – I have asked you for a quantitative method.
Kurt Young of Wetland Preservation Inc. – All of the setbacks that we can see, based on experience, allow for a very simple construction of this house. It is not a big house; it is a very small house as a matter of fact. The septic system is compliant with DEP requirements and regulations. I think if you want it quantitative basis you would say, “What’s DEP said about it?” and I think they provide a vote, a strong vote, a demonstrative vote that it’s not going to have an impact on the wetland areas.
Charles Waters, GCC – When you say that the design of this house is somehow special, could you describe that more? How that’s special and different than other designs?
Kurt Young of Wetland Preservation Inc. – Sure, the house with the lot is relatively flat. The house construction that we have proposed, in the proposed design that the DEP ruled on and even in the one we proposed in the alternative, both provide for grading and erosion control barriers that would protect that area during construction. There is no, what I would call, risk. There’s no direct impact for one thing and the risk of impact to the wetland area is reduced due to the fact that this house is small relative to this lot. The grading isn’t excessive. It doesn’t require great steep slopes going right down to the edge of the wetland and I think construction methodologies today can control that site very well.
Charles Waters, GCC – But everything you have just said to me sounds like every other plan we have before us. There is nothing really extraordinary or unusual about what you are describing as the design of the house that would make me think that this is any different analysis than what we typically look at.
Kurt Young of Wetland Preservation Inc. – I can appreciate that you might feel that way but the house itself and the property, the location of the house is right against the street to the degree we can move it and the side slopes on the lot as it exists and are proposed are not excessive because the house is relatively small, toward the street and away from the wetland area. It does differ quite a bit from a lot of other houses we see on lots that have building footprints that are large and also push the limits of the grading that you could do on a property without expecting to have significant run-off and erosion problems.
Charles Waters, GCC – You have a house on a small lot that has resource areas literally all around it.
Kurt Young of Wetland Preservation Inc. – Well, they aren’t really all around but you certainly have them on two sides.
Charles Waters, GCC - …and I don’t really see that anything about… for example the parking at 55 feet that’s anyhow special that qualifies for not having the same impact on the resources than any other plan with parking at 55 feet, a building at 38 feet, or grading at 10 feet and a septic at 33 feet. We never have septic at 33 feet. We never approve plans like that.
Kurt Young of Wetland Preservation Inc. – I don’t think you will find…I don’t think you have measured that correctly with regard to the …(either septic or wetlands)
Charles Waters, GCC – Where do you think the septic is? And I’m talking about the old plan.
Kurt Young of Wetland Preservation Inc. – I understand that. Let me take a look at that.
Paul Nelson, GCC – I think you’re talking about the primary and the secondary, too, right?
Charles Waters, GCC – Yup.
Kurt Young of Wetland Preservation Inc. – The reserve system is within the 75 foot buffer. So, it’s not. I think you said 37 feet and my point would that it is 75 feet. So, your statistics seem to be incorrect. Do you know where you got the information from?
Steve Przyjemski, Agent – That’s based on the plan that was submitted. There was a revision after that…that was never…it was just thrown out there. So, it was all based on the current plan.
Charles Waters, GCC – What is the plan that we voted on?
Steve Przyjemski, Agent – The first one.
Charles Waters, GCC – So, are you referring to the plan that we voted on?
Denise Brogna, Attorney – We don’t know what plan you voted on because we were asked during the public hearing while it was still open to come up with another plan which is what we thought you voted on but I guess your Agent just said you didn’t vote on this plan.
Steve Przyjemski, Agent – I don’t know what plan that is. (Referencing plan in front of KY)
Carl Shreder, GCC – Isn’t that the plan you brought in last week?
Denise Brogna, Attorney – No, this is the one we brought up when the original engineer was on the project. You asked him to come up with something better. So, he did. And this was the something better, at your request.
Charles Waters, GCC – The only thing I am really concerned…or …interested in is what we voted on. Now, when we vote we always vote on a plan.
Steve Przyjemski, Agent – I think it is also…It doesn’t meet the regulations. So, within 100 feet no septic, no new septic within 100 feet.
Charles Waters, GCC – It’s the same issue but the larger picture here is what plan. Why do you have a plan in front of you that we think we didn’t vote on?
Kurt Young of Wetland Preservation Inc. – There was an alternative plan that was given to you that sort of flipped the house and the driveway and moved the septic system so that it’s all right up against the road and did not consider, in what I would consider in a sensitive way, the presence of a drainage channel that is located on the side of the property and that was part of the thought process that the commission had at that point in time was to see what we could do to reduce the setback to the back and we did. But that does end up with a setback of 32 feet to the side wetland for the reserve portion of the…actually the primary portion of the septic system not something I would ever expect this commission would ever gravitate towards.
Steve Przyjemski, Agent – What was the date on that plan?
Denise Brogna, Attorney – October 19, 2006.
Carl Shreder, GCC – We always vote on a plan with a date and its revision.
Kurt Young of Wetland Preservation Inc. – But that was an alternative that I would be very surprised if this commission would entertain something because of the setback of the primary system that would not comply with the state setback for septic systems. So, from that stand point we would never present that as a site plan that would be preferred.
Charles Waters, GCC – I would like some clarity on what plan we voted on because….
Denise Brogna, Attorney – Unfortunately, your minutes in your administrative record don’t tell us what plan you voted on.
Charles Waters, GCC – And the minutes don’t state a certain dated plan?
Denise Brogna, Attorney – No.
Paul Nelson, GCC – That’s hard to believe.
Charles Waters, GCC – That is hard to believe.
Paul Nelson, GCC – Mr. Chairman, I think we can get wrapped around the axle on this one I think that we should deal with the remand and then if they want to re-file with an amended or new plan…
Carl Shreder, GCC – Well, actually we essentially are. We are getting a little too in depth on this.
Paul Nelson, GCC – This is not set up as a hearing so if we want to discuss this in a full manner then we need to have some time allocated to it and not have everyone else that is in the audience that has hearings put off.
George Pucci of K & P – Actually, your Order of Conditions does state the date of the plan that was accepted. It is stated here as 9/7/06 plus 10/19/06.
Denise Brogna, Attorney – So, you voted on both of them.
Paul Nelson, GCC – So, anyway, before I was interrupted, can we actually close this remand off by just indicating….based on discussions we just had we know exactly what we have to do for the judge and move forward into the next…
Carl Shreder, GCC – We were just in the process of articulating that.
Paul Nelson, GCC – Well, without having a plan in front of you that’s exactly what they are taking about…. If you don’t have the information in front of you don’t know what they are talking about and so you can’t really discuss this intelligently. And I don’t think from the remand perspective I don’t think there’s that requirement.
Charles Waters, GCC – Well, no, Paul, there is a requirement to discuss things intelligently and to be fully informed. So, I don’t agree with you respectfully and I think we should dig in and finish this up in the proper way and not cut it short. Now, if our….
Paul Nelson, GCC – What I am saying is that this is not a good way to run a meeting. This could go on for another hour or hour and a half.
Charles Waters, GCC – If this goes on for another hour then this goes on for another hour, it is our business and we have to conduct it. What we do is we try to schedule hearing times and estimate them the best way we can. We are here, council is here, the applicant has been here now twice and I think we have to get this done.
Paul Nelson, GCC – I don’t feel comfortable trying to discuss with the applicant all the decisions we have made when I don’t even have the plans in front of me. I don’t think that rational.
Carl Shreder, GCC – Well, we have some of the information and we don’t have to go over the entire hearing.
Paul Nelson, GCC – We have the findings.
Carl Shreder, GCC – I think that’s all we are required to talk about.
Paul Nelson, GCC – But that is what we are getting wrapped up about because the applicant is saying that that can’t be right because really we are using this plan and the septic is really at this number versus what we have in ours so clearly there is a difference here.
Steve Przyjemski, Agent – Neither one of the plans meets the regulations, either.
Paul Nelson, GCC – Yes, neither one of the plans meets the regulations, which is another issue.
Charles Waters, GCC – Well, it is an important issue. I think the fact is rather its 33 feet or …Sir. What did you say was on the other plan?
Kurt Young of Wetland Preservation Inc. – At least 75 feet.
Charles Waters, GCC – 75? I mean its supposed to be, as you know, 100 feet with new construction and its not something…well since I have been on the Conservation Commission we haven’t permitted new construction within less than 100 feet. And I haven’t heard anything, I mean the Presby system, we’ve seen the Presby system over and over again it’s not a special design that qualifies for less than 100 feet distance from the resources.
Kurt Young of Wetland Preservation Inc. – No, it is better in the stand point of your interests which would seem to make it ah….
Charles Waters, GCC – Well, we deal with Presby systems all of the time. I mean, there is nothing unique about the Presby system as far as the way we see it and since I’ve been on this commission we have not once allowed new construction with a septic system within 100 feet and I haven’t heard anything from you that would suggest that we should suddenly start with this project.
Kurt Young of Wetland Preservation Inc. – I think that you have to look at the DEP requirements and recognize that they have been in business for a long time and accept that 50’ is an adequate setback for a septic system of this nature.
Charles Waters, GCC – You know we don’t say that, you know the bylaw says 100’ and we’ve got the right to enforce our Bylaw which as you know has to be more restrictive than the state statute. So, I understand what DEP says and I think that after the hearing and after the denial of the plan you got DEP’s response. It doesn’t affect our interpretation of our Bylaw and our interest in not permitting new construction with septic within 100’, let alone, 75’ or even 33’.
Denise Brogna, Attorney – But your Bylaws also say that you must assess rather or not there is an impact to the wetlands and also weight if there is a hardship to the applicant. You haven’t done that.
Charles Waters, GCC – Oh, yes we have. We have done that.
George Pucci, K & P – That is actually not true Denise. Their Bylaw treats the 100’ setback as a resource area. So, I don’t think you should continue a legal argument back and forth.
Charles Waters, GCC – There is a presumption related to the resource area and that presumption is on the applicant.
Denise Brogna, Attorney – And we have said that it does not impact the resource area.
Charles Waters, GCC – I know. Every applicant says it doesn’t affect the resources and there is a burden…
Denise Brogna, Attorney – …and you have an expert report with data in it.
Charles Waters, GCC – I understand and what he said is that the design according to DEP standards makes this not detrimental to the resources and I am not disputing his statement that the DEP is okay with the design. The DEP has its statute, we have ours and we are enforcing ours which is more stringent.
Denise Brogna, Attorney – But I am asking you, “What evidence do you have that it impacts the resource area”? What evidence do you have? I mean, other than years of experience I don’t know what you’re….but I am asking you what evidence you have of impact. Because if you don’t have that…
Carl Shreder, GCC – I think I asked that question of you, too.
Denise Brogna, Attorney – But I don’t know what your years of experience are, Sir. Really, I don’t.
Carl Shreder, GCC – I have been in the Environmental field for more 20 years.
George Pucci, K &P – I have to interject! You really don’t have the right to cross examine them, this is a remand hearing. Their 100’ setback is a resource area and you’re proposing to put a house in the resource area so…
Charles Waters, GCC – So, let’s get back to the remand order. I think we have articulated why the application of the plaintiffs is in violation of the regulations of the Town of Georgetown. The second part is the defendant shall articulate the reasons for not accepting certain pieces of evidence offered by the plaintiffs. The way I read this order, the court wants to know why we didn’t accept, essentially the DEP Superseding order, and that is how I read this and I think it is the same reason we have already stated. We didn’t accept it because it didn’t exist and the DEP has different standards than our local bylaws so, for those two reasons, at least from my personal perspective, for those two reasons that’s why we didn’t quote on quote accept the DEP Order.
George Pucci, K & P – I should state for the record because I am here representing the Commission because this is in litigation, as far as this remand I agree, that’s how I read this order, it clearly applies to the Superseding order of Conditions because that was the context of the hearing, was the issue of the propriety of plaintiff relying on the Superseding Order and its motion for judgment on the pleadings that he issued this remand Order. So, that’s the way I would interpret this order, as well.
Denise Brogna, Attorney – The other point I would like to make is the question you asked me last time, is “What evidence besides the DEP order did I think you did not consider?”, and that was his expert opinion of no impact. So, that was the point I made last week and I wish to make that again.
Charles Waters, GCC - …and we have and I think we just spent ten or fifteen minutes talking about that same point so I don’t think we need to reiterate all the arguments but we heard what he said I wrote it down…
Carl Shreder, GCC – We appreciate it.
Charles Waters, GCC - …we have considered it, we have responded to it and now what I’d like to do, unless any commissioners have any other thoughts on this remand hearing, I would like to close the remand hearing.
Kurt Young of Wetland Preservation Inc. – If I could just interject a couple of things before you go to that point. We did provide you with a wildlife habitat evaluation which specifically identified the characteristics of that wetland area and the fact that our activities on that lot will not have an adverse effect on important wildlife habitat. I think that is important to have that on the record. The other aspect is; I understand you to say that the setback on the septic system is 100’ from a resource area or a wetland, is that correct?
Charles Waters, GCC – I don’t know where we are going, I just moved…
Kurt Young of Wetland Preservation Inc. – I am just trying to get a clear indication of your bylaw…
Charles Waters, GCC - …but what you are doing is now going back into a discussion that we had for 15 minutes about these issues and as far as I am concerned, we have now done what the Remand order tells us to do and I want to and I will move to close the remand hearing pursuant to the Remand Order.
Kurt Young of Wetland Preservation Inc. - So, you are not looking for discussion of what your local bylaw was…
Charles Waters, GCC – What I don’t want to do is have another 15 -20 minutes discussion about the same issues that we have already talked about and that’s where I hear you going, is to another conversation about what we’ve just talked about.
Kurt Young of Wetland Preservation Inc. – You stated in your dissertation that you had a 100’ setback to wetlands, I believe that is what I heard stated for septic systems in your local bylaw, then I heard from council and as well as you folks that you have considered the buffer zone as a resource area. So, my question is, “Is it 100 foot setback from a wetland resource area or a 100’ setback from a resource area?”
George Pucci of K & P – The bylaw speaks for itself. If you want a copy you can read it. Again, you are not here to cross examine the Commission.
Kurt Young of Wetland Preservation Inc. – I was trying not to. I was trying to get some clarity because the statement was made by you as well as the commission.
George Pucci of K & P – The Bylaw is clear that both statements were correct. But if you want to read it I have a copy of the Bylaw.
Charles Waters, GCC – The important point is that it is a resource area.
John Bell, GCC – Can I second that motion?
Kurt Young of Wetland Preservation Inc. – What is?
Denise Brogna, Attorney – The setback.
Carl Shreder, GCC – There was a motion?
Charles Waters, GCC – There was.
Carl Shreder, GCC - …and it has been seconded?
John Bell, GCC – Yes.
Carl Shreder, GCC – Is there any further discussion?
Carl Shreder, GCC - …and that motion was to close the Remand hearing. Is there any further discussion?
Paul Nelson, GCC - …and provide a document.
Carl Shreder, GCC - …and provide a document within a set of time?
Charles Waters, GCC – Council, is 30 days adequate?
George Pucci of K & P – I think it is. I don’t think there is any date called for. I think that tenor of this Order of Remand I think it clearly contemplates some sort of written decision for the judge to look at but it doesn’t give a time limit. I would say 30 days is reasonable. What do you think council?
Denise Brogna, Attorney – Our next date in court is October 2nd so…
Charles Waters, GCC – So, let’s make that 21 days.
Charles Waters, GCC – So, amend the motion to state that the Commission will issue written findings in 21 days of the close of this Remand hearing.
MOTION to amend motion to state that the Commission will issue written findings within 21 days of the close of this Remand hearing. Charles/John B. all/unam
Carl Shreder, GCC – The motion has been re-seconded to issue the finding within 21 days of the Remand hearing. Is there any further discussion?
Charles Waters, GCC – There is one other issue with these folks. They have…they sent in a plan last time and we sort of left it up in the air. We received it but didn’t accept it and in the end you didn’t want us to vote on rather we thought that there was a significant change in the plan pursuant to our Bylaw but I think we should offer the plaintiff in this litigation the opportunity to at least take a stand on that issue.
Carl Shreder, GCC – What do you want us to do with the new plan?
Denise Brogna, Attorney - As far as I am concerned, you can give them back right now.
Charles Waters, GCC - …and not vote on it? Do nothing?
Denise Brogna, Attorney – I think we are done discussing this issue.
Charles Waters, GCC – Okay.
Denise Brogna, Attorney – So, if you want you can hand over the plans or keep them in your record.
Charles Waters, GCC – Okay.
Hearings:
8-10 Pine Plain Road
Gary Sacriter, Atty. – We wanted some direction as to where to go from here.
Carl Shreder, GCC – We did receive the plan. Please give us a moment.
MOTION to accept NOI plan dated 8/5/08 for 8-10 Pine Plain Road. Paul/Mike B. all/unam
MOTION to close hearing. John B. / Mike B. all/unam
AMEND MOTION to state the revised plan date 7/14/08. Paul/Charles all unam
3 Canterbury Drive
Mike Seekamp & Joe C.
Mike Seekamp, Rep. – This house was built in the 1960’s and the main reason for us filing is for repair to the septic system but the applicant would like to repair the pool house while this work would be done.
Carl Shreder, GCC – is the system in failure?
Joe C. – it is my understanding that the system must be repaired to sell the house.
Carl Shreder, GCC – Has the BOH approved this?
Mike Seekamp, Rep. – I don’t have that yet.
Charles Waters, GCC – Is this worth a site visit?
Steve Przyjemski, Agent – The only thing is that cross wall that could pose a problem with erosion. We haven’t heard from the DEP at this point, anyway.
Paul Nelson, GCC – So, the closest you could get is 10’.
Charles Waters, GCC – Please, include a detail on the protocol on the pool- house work.
Carl Shreder, GCC – So, we are only waiting on the DEP.
MOTION to cont to Sept 18th @ 7:15pm John B. /Mike B. all/unam
10 Martel Way and Searle Street Rear
Jim Dimento for Park & Recreation
Steve Przyjemski, Agent – This has been a straight forward delineation and in this particular case I worked with the scientist who did this for them and I’m pretty happy with what is out there. The com could request a site walk at this point.
Charles Waters, GCC – So, are we fine with this plan that we have?
Steve Przyjemski, Agent – The other thing the commission could request is a site walk. I mean, in these circumstances….
Carl Shreder, GCC – Yes, often in these situations an applicant who has had a delineation done, will want us to take a walk to take a look at the lines.
Jim DiMento, PRC – My only concern was how much of the wetlands were out there. It seems it is what it is and I am accepting of this.
Charles Waters, GCC – So, it doesn’t seem there is anything more that we need to do.
MOTION to approve the delineation on plan dated 08/08/08 at flags A12-A62, B02-B117, and C8-C10 and the resources associated. Also, to issue an ORAD on said parcel. Charles/ John B. all/unam
MOTION to close hearing. Mike B. /Charles all/unam
10 Searle Street
Dean Chongris present
Paul Nelson, GCC – The deed has been circulated to discuss changes and the applicant has not seen this yet. We are waiting on K & P.
Charles Waters, GCC – So, there is a potential that we approve the plan with stipulations and the town votes to do something entirely different than what we would like to do with this parcel.
Carl Shreder, GCC – We should be able to ensure mitigation on something that we are handling.
Mike Birmingham, GCC – This is going to Town Meeting for a vote irregardless.
Charles Waters, GCC - I think we could in the language that the applicant takes the risks.
Charles Waters, GCC – The terms would be that the supplicant would be restoring …..
Dean Chongris – I have used mitigation of land before and it seems the use of the land is more of a concern than who owns it. However, before this does go to Town Meeting perhaps we should protect the land with a CR.
Charles Waters, GCC – That gives us less flexibility and ideally we should move to do this after this has gone to the Town Meeting.
Dean Chongris – What about a deed restriction before it goes to Town Meeting? We can bring it in with whatever restrictions you would want.
Charles Waters, GCC – What if Park & Rec. gets the land? What are they going to do with it then?
Dean Chongris – We can make this clear as to what is P & R and what is Con Com land and the restrictions can be put on the Con Com land only and this is made clear before this goes to Town Meeting. So, what we solidify on the deed here and then they can not make any changes at that point. It is either accepted or not.
Dean Chongris – Doing in this process we will carry the deed until this goes to Town Meeting.
Charles Waters, GCC – Initially, this was all about Park & Rec. getting some land and we were getting our parcel for mitigation on significant waivers.
Charles Waters, GCC – You should have your real-estate attorneys to propose something related to the easement and or the CR. So, we can have time to review this and a back up plan if the plan fails at Town Meeting.
Dean Chongris – We could put in a Conservation Easement to make this clean and easy.
Charles Waters, GCC – But how easy is it to get out of that?
Dean Chongris – We can’t, if it is recorded with those restrictions it can not be appealed.
Paul Nelson, GCC – If it is not worded properly then it could go wrong.
Carl Shreder, GCC – There has to be an easier way to do this!
Dean Chongris – How about a bond? We can offer you the land as a bond.
Steve Przyjemski, Agent – This might be a better option.
Dean Chongris – I would like to move forward.
Charles Waters, GCC – Are you in a time frame on this?
Dean Chongris– Yes, I actually have a buyer for the house on the property and it is contingent on this order.
MOTION to accept the NOI for plan dated 09/12/07 and revised plan dated 04/28/08. Conditions: that this OoC is issued with the directive that the deed for the land being gifted to the Conservation Commission as indicated in the plot plan dated 5/29/08 will be properly registered by the applicant upon approval of Town Council if required as a motion of Town Meeting. Two: If the land transferred to the Conservation Commission does not take place this OoC is Null and Void and the property must be returned to the original state or the applicant must come before the Con Com to renegotiate. Three: If the land transferred to the Con Com does not take place due to the action of Town officials or an action of the Town Meeting this OoC will remain valid as long as the applicant re-opens the
negotiations to actually create a deed restriction or similar mechanism to insure that the property is properly protected. Paul / John B.
Carl Shreder, GCC – Is there a second to this motion?
John Bell, GCC – Second.
Charles Waters, GCC – I don’t like the language. I would like to take more time on this and make sure we word this more cleanly and we really want to include the Park & Rec. land on this. To be sure they do get there parcel the way we discussed.
Steve Przyjemski, Agent – I will draft the OoC for the next meeting.
Dean Chongris – You tell me what you want and I’ll get it.
Steve Przyjemski, Agent – We have a deed that just needs to be finalized and if we can come up with the language we need for the OoC.
Charles Waters, GCC – Circulate the language and we can all come to an agreement on. I want real leverage to negotiate further.
Paul Nelson, GCC – Withdraws motion.
Charles Waters, GCC – By next Thursday Paul could you have this language out to Con Com by Wednesday. We should comment and have it out to the applicant to review for a week.
MOTION to cont. to Sept. 18th @ 7:59pm Mike/Charles all/unam
Attendance: Carl Shreder, John Bell, Mike Birmingham, Paul Nelson, Charles Waters, Steve Przyjemski, and Sharon Munro.
Signing:
- Reappointment for Keith Reardon for Camp Denison Committee
MOTION to re-appoint Keith Reardon for the Camp Denison Committee. John B. /Charles all/unam
-OoC for Pine Plain Road
-Neg. Deter. For 275 Central Street - signed
-Letter to attest true copies for Bartlett case
-Letter regarding Open Space Plan approval
Approval:
Meeting minutes for: 6/26, 7/10 and 8/7.
MOTION to approve meeting minutes. Charles/ John B. /Mike Birmingham/Carl
Paul abstains
MOTION to authorize Steve P. to request a new check and give to Delaney for the general fund. Charles/ John Bell all/unam
Carl abstains
MOTION to authorize an AM meeting with Don Anderson, the Camp Denison manager, with a couple of Commissioners and Steve, the agent, to report back to the Commission. Charles/ John B. all/unam
Discussion:
129 Elm Street (Discussion)
In attendance:
Kurt Young of Wetland Preservation
Denise Brogna attorney for applicant
Kurt Young of Wetland Preservation Inc. – The site plan I have just put up is the approved site plan from the DEP review, it is the one you all looked at during the public hearing process…in the hearing. I think you have had an explanation of that but if you need further explanation I would be more than happy to go through it with the board. On the back side of the board is what we have termed the alternative plan from a design stand point. We felt this was an appropriate plan for moving forward. The project has a design plan the uses a slightly different, now approved, septic design called the Presby system. It offers an opportunity to reduce the setbacks to the wetland areas. So, they are very close to the 100 foot setback which is what you folks have for septic systems as well as the Georgetown Board of Health. The site plan
that we proposed also as the alternative site plan has much restricted grading in the back of the house it is basically restricted to the sides of the house and doesn’t require grading to the extent that the site plan that was approved by the DEP.
Carl Shreder, GCC – Before we get too far into the new plan, I would like to address the court’s comments and concerns and address the remand hearing to make sure we hit everything on that requirement.
Charles Waters, GCC – I have a copy of it here. I take it as the court wants us to do two things. First, the defendants are to consider the State’s findings and shall articulate their findings why the application of the plaintiff is in violation of the regulations of the Town of Georgetown and second, the defendant shall articulate the reasons for not accepting certain pieces of evidence offered by the plaintiffs. Are we in agreement in those two areas?
Denise Brogna, Attorney – I don’t have the copy here in front of me but, my recollection was that the court wanted to have a hearing rather not it was a public hearing or not, I agree it is not articulated in the order, and you are to consider the state’s findings, which I believe you already have at this point and articulate why the application of the plaintiffs is in violation of the regulations and that would be the original application, being what Mr. Young has presented here in front of you right now on the board. So, yes, I agree that is a fair reading of the order.
Charles Waters, GCC – Well, let’s …
Denise Brogna, Attorney – Are you going to address that?
Charles Waters, GCC – We should just start with one at a time so, the defendants are to consider the state’s findings. So, that’s the DEP order, right?
Denise Brogna, Attorney – The state’s findings would be the state’s overriding of the order of conditions, we don’t have any problem with this.
Charles Waters, GCC – So, to begin, there should be some discussion about the DEP order and articulate why the Commission didn’t consider it and first off I think there is a real obvious reason why…
Carl Shreder, GCC – The State’s order was after the hearing so, we couldn’t consider something that had not occurred, yet.
Charles Waters, GCC – …and the State’s statute of course, are different than and less restrictive than the local Bylaw and I think those are two reasons that come to my mind right off the bat. Are there any other? We also didn’t have it. Not that that would have made a difference with our local bylaw. It was an impossibility to consider. The second part of that first area is that the Commission should articulate in their findings why the application of the plaintiffs is in violation of the regulations of the Town of Georgetown. By that part, I presume that the court expects us to issue findings. Which we are going to do once we close the remand hearing but, by that word “findings” I am presuming that it is something in writing that the Conservation Commission will issue and will articulate why the
application of the plaintiffs is in violation, in that finding. I think it will probably will be helpful to have that discussion here also in addition to the written findings and from my own personal perspective, to me it appears that the proposed project has impervious parking at 55 feet, there is a 75 foot No-Build setback from the BVW, a pervious building at 38 feet, same 75 foot No-Build setback, grading at 10 feet and construction of a wall at 15 feet which is another violation of the 50 foot no-cut/no disturb setback and the sanitary disposal system at 33 feet which is another violation of the 100 foot septic system setback. From my perspective, that articulates the reasons, why I personally believe, that the plan falls well short of the local bylaw. If there is any other reason why the commission agrees or disagrees with that…
Denise Brogna, Attorney – May I ask a question?
Carl Shreder, GCC – You may.
Denise Brogna, Attorney – Even though it doesn’t comply with your setbacks. What evidence do you have that it adversely impacts the wetlands?
Carl Shreder, GCC – From a number of years of experience of seeing the end result of some these projects.
Denise Brogna, Attorney – But you have a wetland scientist who told you that it doesn’t have any impacts on the wetlands.
Carl Shreder, GCC – And what evidence does he have that it won’t?
Denise Brogna, Attorney – Would you like to speak for that?
Carl Shreder, GCC – Could you quantitatively tell me that it’s not going to cause damage to wetland resources, instead of just telling me it is not going to.
Kurt Young of Wetland Preservation Inc. – Sure, the design of the house and septic system is compliant with the DEP requirements for the setbacks. They have approved the project as having no impact on wetland areas. That’s based on a lot more years of experience there at the DEP than, I dare say, than can be provided by this commission. I am not trying to say anything derogatory about this commission I am just saying that they have a significant more experience. I have number years of experience as well, dealing with these things and dealing with the Georgetown environment. From the stand point of the design of this house there is nothing to suggest a definitive likelihood or risk to the wetland area.
Carl Shreder, GCC – That is qualitative.
Kurt Young of Wetland Preservation Inc. – I think if you understand the science you understand that there is no quantitative way to do that but if you have a way to do that I would be interested in hearing what you have to say with regard to that. Except, to have somewhat of a eh a setback that’s arbitrary and established for everybody in town because that’s what works and I would say at this particular site, it doesn’t work because it is a site with very flat grades associated with it and the construction proposed is sensitive to those issues … at the site.
Carl Shreder, GCC – You have just said there is no quantitative way to do that.
Kurt Young of Wetland Preservation Inc. – I said, I would like to see if you have another way to do that other than arbitrarily…
Carl Shreder, GCC – I have asked you for a quantitative method.
Kurt Young of Wetland Preservation Inc. – All of the setbacks that we can see, based on experience, allow for a very simple construction of this house. It is not a big house; it is a very small house as a matter of fact. The septic system is compliant with DEP requirements and regulations. I think if you want it quantitative basis you would say, “What’s DEP said about it?” and I think they provide a vote, a strong vote, a demonstrative vote that it’s not going to have an impact on the wetland areas.
Charles Waters, GCC – When you say that the design of this house is somehow special, could you describe that more? How that’s special and different than other designs?
Kurt Young of Wetland Preservation Inc. – Sure, the house with the lot is relatively flat. The house construction that we have proposed, in the proposed design that the DEP ruled on and even in the one we proposed in the alternative, both provide for grading and erosion control barriers that would protect that area during construction. There is no, what I would call, risk. There’s no direct impact for one thing and the risk of impact to the wetland area is reduced due to the fact that this house is small relative to this lot. The grading isn’t excessive. It doesn’t require great steep slopes going right down to the edge of the wetland and I think construction methodologies today can control that site very well.
Charles Waters, GCC – But everything you have just said to me sounds like every other plan we have before us. There is nothing really extraordinary or unusual about what you are describing as the design of the house that would make me think that this is any different analysis than what we typically look at.
Kurt Young of Wetland Preservation Inc. – I can appreciate that you might feel that way but the house itself and the property, the location of the house is right against the street to the degree we can move it and the side slopes on the lot as it exists and are proposed are not excessive because the house is relatively small, toward the street and away from the wetland area. It does differ quite a bit from a lot of other houses we see on lots that have building footprints that are large and also push the limits of the grading that you could do on a property without expecting to have significant run-off and erosion problems.
Charles Waters, GCC – You have a house on a small lot that has resource areas literally all around it.
Kurt Young of Wetland Preservation Inc. – Well, they aren’t really all around but you certainly have them on two sides.
Charles Waters, GCC - …and I don’t really see that anything about… for example the parking at 55 feet that’s anyhow special that qualifies for not having the same impact on the resources than any other plan with parking at 55 feet, a building at 38 feet, or grading at 10 feet and a septic at 33 feet. We never have septic at 33 feet. We never approve plans like that.
Kurt Young of Wetland Preservation Inc. – I don’t think you will find…I don’t think you have measured that correctly with regard to the …(either septic or wetlands)
Charles Waters, GCC – Where do you think the septic is? And I’m talking about the old plan.
Kurt Young of Wetland Preservation Inc. – I understand that. Let me take a look at that.
Paul Nelson, GCC – I think you’re talking about the primary and the secondary, too, right?
Charles Waters, GCC – Yup.
Kurt Young of Wetland Preservation Inc. – The reserve system is within the 75 foot buffer. So, it’s not. I think you said 37 feet and my point would that it is 75 feet. So, your statistics seem to be incorrect. Do you know where you got the information from?
Steve Przyjemski, Agent – That’s based on the plan that was submitted. There was a revision after that…that was never…it was just thrown out there. So, it was all based on the current plan.
Charles Waters, GCC – What is the plan that we voted on?
Steve Przyjemski, Agent – The first one.
Charles Waters, GCC – So, are you referring to the plan that we voted on?
Denise Brogna, Attorney – We don’t know what plan you voted on because we were asked during the public hearing while it was still open to come up with another plan which is what we thought you voted on but I guess your Agent just said you didn’t vote on this plan.
Steve Przyjemski, Agent – I don’t know what plan that is. (Referencing plan in front of KY)
Carl Shreder, GCC – Isn’t that the plan you brought in last week?
Denise Brogna, Attorney – No, this is the one we brought up when the original engineer was on the project. You asked him to come up with something better. So, he did. And this was the something better, at your request.
Charles Waters, GCC – The only thing I am really concerned…or …interested in is what we voted on. Now, when we vote we always vote on a plan.
Steve Przyjemski, Agent – I think it is also…It doesn’t meet the regulations. So, within 100 feet no septic, no new septic within 100 feet.
Charles Waters, GCC – It’s the same issue but the larger picture here is what plan. Why do you have a plan in front of you that we think we didn’t vote on?
Kurt Young of Wetland Preservation Inc. – There was an alternative plan that was given to you that sort of flipped the house and the driveway and moved the septic system so that it’s all right up against the road and did not consider, in what I would consider in a sensitive way, the presence of a drainage channel that is located on the side of the property and that was part of the thought process that the commission had at that point in time was to see what we could do to reduce the setback to the back and we did. But that does end up with a setback of 32 feet to the side wetland for the reserve portion of the…actually the primary portion of the septic system not something I would ever expect this commission would ever gravitate towards.
Steve Przyjemski, Agent – What was the date on that plan?
Denise Brogna, Attorney – October 19, 2006.
Carl Shreder, GCC – We always vote on a plan with a date and its revision.
Kurt Young of Wetland Preservation Inc. – But that was an alternative that I would be very surprised if this commission would entertain something because of the setback of the primary system that would not comply with the state setback for septic systems. So, from that stand point we would never present that as a site plan that would be preferred.
Charles Waters, GCC – I would like some clarity on what plan we voted on because….
Denise Brogna, Attorney – Unfortunately, your minutes in your administrative record don’t tell us what plan you voted on.
Charles Waters, GCC – And the minutes don’t state a certain dated plan?
Denise Brogna, Attorney – No.
Paul Nelson, GCC – That’s hard to believe.
Charles Waters, GCC – That is hard to believe.
Paul Nelson, GCC – Mr. Chairman, I think we can get wrapped around the axle on this one I think that we should deal with the remand and then if they want to re-file with an amended or new plan…
Carl Shreder, GCC – Well, actually we essentially are. We are getting a little too in depth on this.
Paul Nelson, GCC – This is not set up as a hearing so if we want to discuss this in a full manner then we need to have some time allocated to it and not have everyone else that is in the audience that has hearings put off.
George Pucci of K & P – Actually, your Order of Conditions does state the date of the plan that was accepted. It is stated here as 9/7/06 plus 10/19/06.
Denise Brogna, Attorney – So, you voted on both of them.
Paul Nelson, GCC – So, anyway, before I was interrupted, can we actually close this remand off by just indicating….based on discussions we just had we know exactly what we have to do for the judge and move forward into the next…
Carl Shreder, GCC – We were just in the process of articulating that.
Paul Nelson, GCC – Well, without having a plan in front of you that’s exactly what they are taking about…. If you don’t have the information in front of you don’t know what they are talking about and so you can’t really discuss this intelligently. And I don’t think from the remand perspective I don’t think there’s that requirement.
Charles Waters, GCC – Well, no, Paul, there is a requirement to discuss things intelligently and to be fully informed. So, I don’t agree with you respectfully and I think we should dig in and finish this up in the proper way and not cut it short. Now, if our….
Paul Nelson, GCC – What I am saying is that this is not a good way to run a meeting. This could go on for another hour or hour and a half.
Charles Waters, GCC – If this goes on for another hour then this goes on for another hour, it is our business and we have to conduct it. What we do is we try to schedule hearing times and estimate them the best way we can. We are here, council is here, the applicant has been here now twice and I think we have to get this done.
Paul Nelson, GCC – I don’t feel comfortable trying to discuss with the applicant all the decisions we have made when I don’t even have the plans in front of me. I don’t think that rational.
Carl Shreder, GCC – Well, we have some of the information and we don’t have to go over the entire hearing.
Paul Nelson, GCC – We have the findings.
Carl Shreder, GCC – I think that’s all we are required to talk about.
Paul Nelson, GCC – But that is what we are getting wrapped up about because the applicant is saying that that can’t be right because really we are using this plan and the septic is really at this number versus what we have in ours so clearly there is a difference here.
Steve Przyjemski, Agent – Neither one of the plans meets the regulations, either.
Paul Nelson, GCC – Yes, neither one of the plans meets the regulations, which is another issue.
Charles Waters, GCC – Well, it is an important issue. I think the fact is rather its 33 feet or …Sir. What did you say was on the other plan?
Kurt Young of Wetland Preservation Inc. – At least 75 feet.
Charles Waters, GCC – 75? I mean its supposed to be, as you know, 100 feet with new construction and its not something…well since I have been on the Conservation Commission we haven’t permitted new construction within less than 100 feet. And I haven’t heard anything, I mean the Presby system, we’ve seen the Presby system over and over again it’s not a special design that qualifies for less than 100 feet distance from the resources.
Kurt Young of Wetland Preservation Inc. – No, it is better in the stand point of your interests which would seem to make it ah….
Charles Waters, GCC – Well, we deal with Presby systems all of the time. I mean, there is nothing unique about the Presby system as far as the way we see it and since I’ve been on this commission we have not once allowed new construction with a septic system within 100 feet and I haven’t heard anything from you that would suggest that we should suddenly start with this project.
Kurt Young of Wetland Preservation Inc. – I think that you have to look at the DEP requirements and recognize that they have been in business for a long time and accept that 50’ is an adequate setback for a septic system of this nature.
Charles Waters, GCC – You know we don’t say that, you know the bylaw says 100’ and we’ve got the right to enforce our Bylaw which as you know has to be more restrictive than the state statute. So, I understand what DEP says and I think that after the hearing and after the denial of the plan you got DEP’s response. It doesn’t affect our interpretation of our Bylaw and our interest in not permitting new construction with septic within 100’, let alone, 75’ or even 33’.
Denise Brogna, Attorney – But your Bylaws also say that you must assess rather or not there is an impact to the wetlands and also weight if there is a hardship to the applicant. You haven’t done that.
Charles Waters, GCC – Oh, yes we have. We have done that.
George Pucci, K & P – That is actually not true Denise. Their Bylaw treats the 100’ setback as a resource area. So, I don’t think you should continue a legal argument back and forth.
Charles Waters, GCC – There is a presumption related to the resource area and that presumption is on the applicant.
Denise Brogna, Attorney – And we have said that it does not impact the resource area.
Charles Waters, GCC – I know. Every applicant says it doesn’t affect the resources and there is a burden…
Denise Brogna, Attorney – …and you have an expert report with data in it.
Charles Waters, GCC – I understand and what he said is that the design according to DEP standards makes this not detrimental to the resources and I am not disputing his statement that the DEP is okay with the design. The DEP has its statute, we have ours and we are enforcing ours which is more stringent.
Denise Brogna, Attorney – But I am asking you, “What evidence do you have that it impacts the resource area”? What evidence do you have? I mean, other than years of experience I don’t know what you’re….but I am asking you what evidence you have of impact. Because if you don’t have that…
Carl Shreder, GCC – I think I asked that question of you, too.
Denise Brogna, Attorney – But I don’t know what your years of experience are, Sir. Really, I don’t.
Carl Shreder, GCC – I have been in the Environmental field for more 20 years.
George Pucci, K &P – I have to interject! You really don’t have the right to cross examine them, this is a remand hearing. Their 100’ setback is a resource area and you’re proposing to put a house in the resource area so…
Charles Waters, GCC – So, let’s get back to the remand order. I think we have articulated why the application of the plaintiffs is in violation of the regulations of the Town of Georgetown. The second part is the defendant shall articulate the reasons for not accepting certain pieces of evidence offered by the plaintiffs. The way I read this order, the court wants to know why we didn’t accept, essentially the DEP Superseding order, and that is how I read this and I think it is the same reason we have already stated. We didn’t accept it because it didn’t exist and the DEP has different standards than our local bylaws so, for those two reasons, at least from my personal perspective, for those two reasons that’s why we didn’t quote on quote accept the DEP Order.
George Pucci, K & P – I should state for the record because I am here representing the Commission because this is in litigation, as far as this remand I agree, that’s how I read this order, it clearly applies to the Superseding order of Conditions because that was the context of the hearing, was the issue of the propriety of plaintiff relying on the Superseding Order and its motion for judgment on the pleadings that he issued this remand Order. So, that’s the way I would interpret this order, as well.
Denise Brogna, Attorney – The other point I would like to make is the question you asked me last time, is “What evidence besides the DEP order did I think you did not consider?”, and that was his expert opinion of no impact. So, that was the point I made last week and I wish to make that again.
Charles Waters, GCC - …and we have and I think we just spent ten or fifteen minutes talking about that same point so I don’t think we need to reiterate all the arguments but we heard what he said I wrote it down…
Carl Shreder, GCC – We appreciate it.
Charles Waters, GCC - …we have considered it, we have responded to it and now what I’d like to do, unless any commissioners have any other thoughts on this remand hearing, I would like to close the remand hearing.
Kurt Young of Wetland Preservation Inc. – If I could just interject a couple of things before you go to that point. We did provide you with a wildlife habitat evaluation which specifically identified the characteristics of that wetland area and the fact that our activities on that lot will not have an adverse effect on important wildlife habitat. I think that is important to have that on the record. The other aspect is; I understand you to say that the setback on the septic system is 100’ from a resource area or a wetland, is that correct?
Charles Waters, GCC – I don’t know where we are going, I just moved…
Kurt Young of Wetland Preservation Inc. – I am just trying to get a clear indication of your bylaw…
Charles Waters, GCC - …but what you are doing is now going back into a discussion that we had for 15 minutes about these issues and as far as I am concerned, we have now done what the Remand order tells us to do and I want to and I will move to close the remand hearing pursuant to the Remand Order.
Kurt Young of Wetland Preservation Inc. - So, you are not looking for discussion of what your local bylaw was…
Charles Waters, GCC – What I don’t want to do is have another 15 -20 minutes discussion about the same issues that we have already talked about and that’s where I hear you going, is to another conversation about what we’ve just talked about.
Kurt Young of Wetland Preservation Inc. – You stated in your dissertation that you had a 100’ setback to wetlands, I believe that is what I heard stated for septic systems in your local bylaw, then I heard from council and as well as you folks that you have considered the buffer zone as a resource area. So, my question is, “Is it 100 foot setback from a wetland resource area or a 100’ setback from a resource area?”
George Pucci of K & P – The bylaw speaks for itself. If you want a copy you can read it. Again, you are not here to cross examine the Commission.
Kurt Young of Wetland Preservation Inc. – I was trying not to. I was trying to get some clarity because the statement was made by you as well as the commission.
George Pucci of K & P – The Bylaw is clear that both statements were correct. But if you want to read it I have a copy of the Bylaw.
Charles Waters, GCC – The important point is that it is a resource area.
John Bell, GCC – Can I second that motion?
Kurt Young of Wetland Preservation Inc. – What is?
Denise Brogna, Attorney – The setback.
Carl Shreder, GCC – There was a motion?
Charles Waters, GCC – There was.
Carl Shreder, GCC - …and it has been seconded?
John Bell, GCC – Yes.
Carl Shreder, GCC – Is there any further discussion?
Carl Shreder, GCC - …and that motion was to close the Remand hearing. Is there any further discussion?
Paul Nelson, GCC - …and provide a document.
Carl Shreder, GCC - …and provide a document within a set of time?
Charles Waters, GCC – Council, is 30 days adequate?
George Pucci of K & P – I think it is. I don’t think there is any date called for. I think that tenor of this Order of Remand I think it clearly contemplates some sort of written decision for the judge to look at but it doesn’t give a time limit. I would say 30 days is reasonable. What do you think council?
Denise Brogna, Attorney – Our next date in court is October 2nd so…
Charles Waters, GCC – So, let’s make that 21 days.
Charles Waters, GCC – So, amend the motion to state that the Commission will issue written findings in 21 days of the close of this Remand hearing.
MOTION to amend motion to state that the Commission will issue written findings within 21 days of the close of this Remand hearing. Charles/John B. all/unam
Carl Shreder, GCC – The motion has been re-seconded to issue the finding within 21 days of the Remand hearing. Is there any further discussion?
Charles Waters, GCC – There is one other issue with these folks. They have…they sent in a plan last time and we sort of left it up in the air. We received it but didn’t accept it and in the end you didn’t want us to vote on rather we thought that there was a significant change in the plan pursuant to our Bylaw but I think we should offer the plaintiff in this litigation the opportunity to at least take a stand on that issue.
Carl Shreder, GCC – What do you want us to do with the new plan?
Denise Brogna, Attorney - As far as I am concerned, you can give them back right now.
Charles Waters, GCC - …and not vote on it? Do nothing?
Denise Brogna, Attorney – I think we are done discussing this issue.
Charles Waters, GCC – Okay.
Denise Brogna, Attorney – So, if you want you can hand over the plans or keep them in your record.
Charles Waters, GCC – Okay.
Hearings:
8-10 Pine Plain Road
Gary Sacriter, Atty. – We wanted some direction as to where to go from here.
Carl Shreder, GCC – We did receive the plan. Please give us a moment.
MOTION to accept NOI plan dated 8/5/08 for 8-10 Pine Plain Road. Paul/Mike B. all/unam
MOTION to close hearing. John B. / Mike B. all/unam
AMEND MOTION to state the revised plan date 7/14/08. Paul/Charles all unam
3 Canterbury Drive
Mike Seekamp & Joe C.
Mike Seekamp, Rep. – This house was built in the 1960’s and the main reason for us filing is for repair to the septic system but the applicant would like to repair the pool house while this work would be done.
Carl Shreder, GCC – is the system in failure?
Joe C. – it is my understanding that the system must be repaired to sell the house.
Carl Shreder, GCC – Has the BOH approved this?
Mike Seekamp, Rep. – I don’t have that yet.
Charles Waters, GCC – Is this worth a site visit?
Steve Przyjemski, Agent – The only thing is that cross wall that could pose a problem with erosion. We haven’t heard from the DEP at this point, anyway.
Paul Nelson, GCC – So, the closest you could get is 10’.
Charles Waters, GCC – Please, include a detail on the protocol on the pool- house work.
Carl Shreder, GCC – So, we are only waiting on the DEP.
MOTION to cont to Sept 18th @ 7:15pm John B. /Mike B. all/unam
10 Martel Way and Searle Street Rear
Jim Dimento for Park & Recreation
Steve Przyjemski, Agent – This has been a straight forward delineation and in this particular case I worked with the scientist who did this for them and I’m pretty happy with what is out there. The com could request a site walk at this point.
Charles Waters, GCC – So, are we fine with this plan that we have?
Steve Przyjemski, Agent – The other thing the commission could request is a site walk. I mean, in these circumstances….
Carl Shreder, GCC – Yes, often in these situations an applicant who has had a delineation done, will want us to take a walk to take a look at the lines.
Jim DiMento, PRC – My only concern was how much of the wetlands were out there. It seems it is what it is and I am accepting of this.
Charles Waters, GCC – So, it doesn’t seem there is anything more that we need to do.
MOTION to approve the delineation on plan dated 08/08/08 at flags A12-A62, B02-B117, and C8-C10 and the resources associated. Also, to issue an ORAD on said parcel. Charles/ John B. all/unam
MOTION to close hearing. Mike B. /Charles all/unam
10 Searle Street
Dean Chongris present
Paul Nelson, GCC – The deed has been circulated to discuss changes and the applicant has not seen this yet. We are waiting on K & P.
Charles Waters, GCC – So, there is a potential that we approve the plan with stipulations and the town votes to do something entirely different than what we would like to do with this parcel.
Carl Shreder, GCC – We should be able to ensure mitigation on something that we are handling.
Mike Birmingham, GCC – This is going to Town Meeting for a vote irregardless.
Charles Waters, GCC - I think we could in the language that the applicant takes the risks.
Charles Waters, GCC – The terms would be that the supplicant would be restoring …..
Dean Chongris – I have used mitigation of land before and it seems the use of the land is more of a concern than who owns it. However, before this does go to Town Meeting perhaps we should protect the land with a CR.
Charles Waters, GCC – That gives us less flexibility and ideally we should move to do this after this has gone to the Town Meeting.
Dean Chongris – What about a deed restriction before it goes to Town Meeting? We can bring it in with whatever restrictions you would want.
Charles Waters, GCC – What if Park & Rec. gets the land? What are they going to do with it then?
Dean Chongris – We can make this clear as to what is P & R and what is Con Com land and the restrictions can be put on the Con Com land only and this is made clear before this goes to Town Meeting. So, what we solidify on the deed here and then they can not make any changes at that point. It is either accepted or not.
Dean Chongris – Doing in this process we will carry the deed until this goes to Town Meeting.
Charles Waters, GCC – Initially, this was all about Park & Rec. getting some land and we were getting our parcel for mitigation on significant waivers.
Charles Waters, GCC – You should have your real-estate attorneys to propose something related to the easement and or the CR. So, we can have time to review this and a back up plan if the plan fails at Town Meeting.
Dean Chongris – We could put in a Conservation Easement to make this clean and easy.
Charles Waters, GCC – But how easy is it to get out of that?
Dean Chongris – We can’t, if it is recorded with those restrictions it can not be appealed.
Paul Nelson, GCC – If it is not worded properly then it could go wrong.
Carl Shreder, GCC – There has to be an easier way to do this!
Dean Chongris – How about a bond? We can offer you the land as a bond.
Steve Przyjemski, Agent – This might be a better option.
Dean Chongris – I would like to move forward.
Charles Waters, GCC – Are you in a time frame on this?
Dean Chongris– Yes, I actually have a buyer for the house on the property and it is contingent on this order.
MOTION to accept the NOI for plan dated 09/12/07 and revised plan dated 04/28/08. Conditions: that this OoC is issued with the directive that the deed for the land being gifted to the Conservation Commission as indicated in the plot plan dated 5/29/08 will be properly registered by the applicant upon approval of Town Council if required as a motion of Town Meeting. Two: If the land transferred to the Conservation Commission does not take place this OoC is Null and Void and the property must be returned to the original state or the applicant must come before the Con Com to renegotiate. Three: If the land transferred to the Con Com does not take place due to the action of Town officials or an action of the Town Meeting this OoC will remain valid as long as the applicant re-opens the
negotiations to actually create a deed restriction or similar mechanism to insure that the property is properly protected. Paul / John B.
Carl Shreder, GCC – Is there a second to this motion?
John Bell, GCC – Second.
Charles Waters, GCC – I don’t like the language. I would like to take more time on this and make sure we word this more cleanly and we really want to include the Park & Rec. land on this. To be sure they do get there parcel the way we discussed.
Steve Przyjemski, Agent – I will draft the OoC for the next meeting.
Dean Chongris – You tell me what you want and I’ll get it.
Steve Przyjemski, Agent – We have a deed that just needs to be finalized and if we can come up with the language we need for the OoC.
Charles Waters, GCC – Circulate the language and we can all come to an agreement on. I want real leverage to negotiate further.
Paul Nelson, GCC – Withdraws motion.
Charles Waters, GCC – By next Thursday Paul could you have this language out to Con Com by Wednesday. We should comment and have it out to the applicant to review for a week.
MOTION to cont. to Sept. 18th @ 7:59pm Mike/Charles all/unam
| 
