Inland Wetlands Commission
DRAFT MINUTES
Special Meeting
July 30, 2008 7:30 p.m.
31 Pecks Lane, Newtown, Connecticut
Present: Peters, Salling Kotch, Pieragostini, Clancy
Staff Present: Robert Sibley, Deputy Director; Tammy Hazen, Clerk
--------------------------------------------------------------------------------------------------------------------------------------------------
Commissioner Peters opened the hearing at 7:30 p.m.
Public Hearing
#08-09 Vona, Oak Ridge III, 46 Eden Hill Road. Application for activities relating to a subdivision.
Wes Stout, Landscape Architect & Planner, Wesley Stout Associates, 96 Main Street, New Canaan, CT, stated that the team was present to respond to any comments regarding information on nitrogen and wildlife habitat.
Atty. Jim Murphy from Gregory & Adams in Wilton, CT, opened up a discussion and asked about a new report from Mr. McManus. Mr. Sibley said that the Commission received a report just prior to the start of the meeting. Commissioner Peters stated that she felt the request for this special meeting was to give the applicant additional information in response to Mr. McManus’ previous letter. Atty. Murphy disagreed and stated that they expected another report from Mr. McManus in time for them to review and respond. He felt the Commission should not read or rely upon the report that was just received and then he discussed legal issues. Commissioner Peters suggested that the applicant focus on new information they wish to submit. She also stated that the Commission has consulted with
the Town’s counsel and that if the applicant has legal concerns, the Commission will need to consult with counsel again. She also stated that the Commission is not entitled to accept new information and facts after the close of the hearing, but are entitled to receive, from the Commission’s experts, comments, opinions and evaluations of the information that has already been submitted by the applicant.
Atty. Murphy requested to review legal matters during the meeting, but Commission Peters stated that the Town counsel is not present to represent the Commission. Atty. Murphy stated that if Mr. McManus’ report includes new or different facts, not just his review and commentary on materials that have been submitted, then its information that needs to be disregarded by the Commission. Commissioner Peters noted that no one has reviewed Mr. McManus’ report yet and confirmed that the Commission would disregard any new facts the expert may have added to the report. Atty. Murphy stated that it’s not whether the Commission can regard it or not, it’s whether the applicant is given the opportunity to talk about the issue. He asked for a ten minute break to review the
report.
Ms. Peters stated that although she has no issue with taking a ten minute break, she feels it’s not enough time and that the Commission is entitled to receive expert comments, advice, interpretation of the facts and documents that are submitted, even after the close of the hearing. Atty. Murphy discussed not having an opportunity to talk about the information in the letter. Commissioner Peters stated that the case law is clear that the Commission is entitled to receive certain types of information from their experts outside of the hearing, after the hearing is closed, with no right to rebut. She assured the applicant that the commissioners have not had an opportunity to review the report.
Commissioner Kotch stated it was his understanding that the purpose of the meeting was to discuss the July 9th report from Mr. McManus and that he thought that another report was going to be submitted by Tuesday morning. He noted his opposition in giving the applicant ten minutes to look at the report and stated it would not be enough time to review and that it would then put the Commission in an awkward legal position in case of a denial.
Commissioner Salling agreed with Commissioner Kotch and stated that ten minutes was not enough. She stated it would be appropriate to close the public hearing and that the Commission has the right to review the information afterwards.
Commissioner Peters said the applicant has the option to withdraw the application and resubmit. Atty. Murphy stated the cost would be too high and then discussed the jurisdictional scope of the Commission.
Michael Klein, Soil Scientist, Environmental Planning Services, 89 Belknap Road, West Hartford, CT 06117, summarized their findings on nitrogen loading and impact to wildlife and still disagrees with the findings of the Commission’s expert and staff.
Eric Davidson, Wildlife Biologist, Environmental Planning Services, reviewed new design features to help facilitate wildlife, including Cape Cod curbing and box culverts.
Martin Malin, P.E., Tighe & Bond, 1000 Bridgeport Avenue, Shelton, CT, distributed a letter summarizing the septic system designs and nitrate issues.
Mr. Stout discussed pre- and post-construction wildlife assessment and surveys.
Commissioner Kotch noted that out of all the proposed buildings, the house on Lot #17 causes the most impact upon the wetlands. Since it was implied that a new house would not be built because of the existing structure, he asked if the applicant would consider dropping the plans for that building. If they plan to build one in the future, they can return at a later time for the commission’s consideration. Atty. Murphy asked for a five minute break. After the break, Mr. Stout and Mr. Malin explained why they intend to keep the proposed house on the plans. Commissioner Peters stated concerns that if the house were to be built, there would still be the second structure on the lot. Mr. Stout conferred with the applicants and concurred that if a new house were to be constructed, the
existing structure would be entirely removed.
Atty. Murphy asked if Mr. McManus’ letter could be discussed. Commissioner Peters stated that the Town’s Attorney would have to articulate the rules and said that the Commission is entitled to expert information under slightly different circumstances than the applicant is and there has been an effort to address the issues properly. Atty. Murphy stated that the Commissioners should not read the letter.
Commissioner Peters stated that the court system has stated that they can receive letters after the close of the hearing, that it is the applicant’s burden to submit a complete and acceptable application, and that it is the applicant’s burden to anticipate and understand all issues and to address them up front.
Commissioner Kotch feels that Atty. Murphy should debate this with the Town’s attorney. Commissioner Salling stated that she feels uncomfortable without another attorney and doesn’t see this as a traditional legal adversarial situation. She feels that there is enough information to make a decision and asked if everyone could get back to the spirit of what everyone is trying to accomplish, which is to look at what’s best for the wetlands and watercourses. Atty. Murphy stated he is just trying to protect his clients and proceeded to provide an overview of their rebuttal highlights and asked for any additional questions.
Commissioner Kotch asked questions about the conservation restrictions. Commissioner Peters had some questions about the deer fencing and the underground pet containment fencing. She stated that the Conservation Commission should have the ability to review the fencing plans. Atty. Murphy agreed. Mr. Gino Vona spoke regarding his respect for wildlife. Atty. Murphy made his closing statements
Commissioner Salling motioned to close the hearing. Seconded by Commissioner Pieragostini. Motion carried unanimously.
Commissioner Peters opened a discussion about the road ordinance. She will discuss this with Mr. Sibley and to plan a meeting with the Town Engineer and First Selectman.
Commissioner Salling motioned to adjourn at 10:05 p.m. Seconded by Commissioner Pieragostini. Motion carried unanimously.
| 
