Minutes from the Regular Meeting of the Legislative Council held in the meeting room of the C. H. Booth Library, 25 Main Street, Newtown, Connecticut, on Wednesday, July 15, 2009. Chairman William Rodgers called the meeting to order at 7:30 pm.
Present: John Aurelia, Sr., Joseph DiCandido, Francis Pennarola, Gary Davis, Joseph Hemingway, Patricia Llodra, Po Murray, Daniel Amaral, Jan Brookes, Jeffery Capeci, Chairman Rodgers and new member Paul Lundquist.
Absent: none
Also Present: Finance Director Bob Tait, Planning and Land Use Director George Benson, Housatonic Railroad Company (HRRC) Executive Vice-President Edward Rodriguez, 14 members of the public and 1 member of the press
PUBLIC PARTICIPATION (1): none
MINUTES of July 1, 2009:
Mr. Davis made the motion to accept the minutes of the meeting held July 1, 2009 as corrected. Mrs. Llodra seconded and the motion was unanimously approved.
Mr. Davis suggested that the second paragraph under the Report by Chairman of the Fairfield Hills Authority Bob Geckle deleted.
Mrs. Llodra suggested that “of the building committee” be removed from the final paragraph under the same report.
COMMUNICATIONS:
Chairman Rodgers informed Council members he had received a request from the Board of Finance to add an additional member as an observer to the negotiating team. That request he said was and was denied by the Board of Education sometime recently.
In addition, due to some email problems, the Chairman said that the Council can expect some items on the next agenda from Deputy Planning and Land Use Director Rob Sibley - items regarding gifts of land pending and some land acquisition matters.
Mr. Davis asked that Council receive information regarding such gifts of land and land acquisition matters ahead of time so they can review them before the meeting. Chairman Rodgers agreed and asked Mr. Benson to have Mr. Sibley forward some information to be dispersed to members of the Council prior to the next meeting Aug. 5, 2009.
COMMITTEE REPORTS:
Chairman Rodgers welcomed Mr. Lundquist to the Legislative Council and informed those at the meeting he was replacing John Torok and subsequently would be taking his place on all the various committees Mr. Torok had served on.
FIRST SELECTMAN’S REPORT:
According to Mr. Borst, Mr. Tait and he attended a meeting July 14 opening of a bidding on the $12 million a bond issue and the low bid of 4 was 0.4380% for 7 months the funds will be used to make the first High School expansion note which is roughly $10 Million and pay the note on the portables that were delivered to the high school which is approximately $900,000. Mr. Borst commended Mr. Tait and said he did a nice job with Webster Bank.
Mr. Borst told the Council that he met with Mr. Benson, Mr. Sibley, Attorney Dave Grogins, Mr. Rodriguez, Collin Piece and Matthew Whitney. He indicated that HRRC didn’t appreciate the letter he sent to the attorney general.
Mr. Borst stated that by the end of next week will have the amount for 27 Church Hill Road - the Real Estate proposal and Phase 1 Environmental Study.
Llodra asked if there was any activity on reissuing bonds.
Mr. Tait stated that a window has opened for refunding making it possible to obtain $10 million in bonds which could reduce a possible $400,000.
According to Mr. Tait, the Newtown is due for a bond in February, but is getting its first invoice at the end of this month. That’s why the town needs the $10 million.
Mr. Davis asked Mr. Borst if the Council could get a full account of any cost overruns of the project at Fairfield Hills and if the Town could re-evaluate its master plan and asked if the Board of Selectman could look into it.
Mr. Borst said their next meeting would be August 3.
NEW BUSINESS:
Discussion and possible action: Amendments to the Parks and Recreation Commission ordinance Chapter 21, Sections 21-1 through 21-11 - Mr. Pennarola moved to approve the amendment to the Parks and Recreation Commission ordinance Chapter 21, Sections 21-1 through 21-11 which were published Bee with the clerical corrections. Mr. Aurelia seconded and the motion was unanimously approved.
Changes recommended by the Council to the amendments as presented:
21.5 B. - first sentence, after Parks and Recreation, replace with the word Commission with the word “Gift.”
21.7 - delete everything after the comma.
21.10 – the second mention of “Commission” should read “Commissioners” and before the segment “. . . to act as Chairman and Vice Chairman or Co-Chairman . . .” should read, “. . .to act as Chairman and one to act as Vice Chairman or Co-Chairman . . .”
Discussion and possible action: Amendments to Chapter 271 Road Construction -
Mr. Pennarola moved to accept the amendments to Chapter 271 Road Construction with the changes so noted by the Council. Mr. Capeci seconded and the motion was unanimously carried.
Changes recommended by the Council to the amendments as presented:
1i – “on a compact disc” shall be replaced by the word “media”
1ii – “Electronics shall be in a format” shall be described by the word “media”
2a – “compact disc” shall be replaced by the word “media”
Discussion and Possible Action: Abandonment of the North End of Stone Gate Drive – Mr. Hall states that the following was a complication that resulted when Bill O’Neil subdivided his property.
Mr. Hall told council member he came too them in February with the request to discontinue Stone Gate Drive.
According to Mr. Hall, Bill O’Niel had two lots subdivided by Stone Gate drive. In order to make a building lot a lot it had to show the road’s discontinue - the last 145 ft of Stone Gate Drive. He recommended that the Town sell the last 145 ft. to the O’Neils. This will give the O’Neils a lot that consists of 6-acres plus a little stretch of land that will allow them to have a driveway serving their lot without having an additional town road to maintain.
According to Section 13-55 of the Town Charter, Stone gate Drive is a discontinued highway and the O’Neils have access over that land.
Mr. Pennarola moved that the Legislative Council approve the discontinuance of what is shown as Parcel A, on map titled lot 7 B, Fox Hollows dated March 12, 2009, which consists of a 50’ by 145’ strip, recommend the sale, and that the matter be scheduled for a Town meeting. Mr. Capeci seconded and the motion was unanimously approved following a brief discussion.
OLD BUSINESS:
Mr. Rodgers guided the meeting by allowing the First Selectman, Land Use Director, Executive Vice-President of HRC and members of the Legislative Council to speak before opening the floor to public participation.
Mr. Borst stated that he had an “informational type” meeting with Mr. Rodriguez, Mr. Sibley, and Mr. Benson at 9 am that morning basing comments on the letter sent to the Attorney General.
According to Mr. Borst, they asked a lot of questions and got a lot of answers.
They touched on such topics as the noise factor, the application submitted to the DEP, recycling tires, traffic, the situation on the opposite side of the tracks, the new larger building, and impingement on wetlands.
Mr. Benson referred to the letter that was sent to the attorney general stating that a lot of things they put in they got from the HRRA. The letter states their opposition to the increase of 450 to 2,000 tons a day and the change in the type of materials.
According to Mr. Benson, it was demo material at first and now there is a whole list of materials – contaminated soils, tires, drudge and fly ash.
He stated that they are asking the attorney general and DEP to look into it closely.
According to Mr. Rodriguez, the depth of concern and misunderstanding required a meeting to convey information so they would have a better understanding.
He explained that Housatonic railroad has been operating a facility handling demolition debris for about 5 years and said that the activities were not subject to permitting requirements by the Department of Environmental Protection (DEP). With the legislation passed last year, he noted that the railroad filed an application to permit existing activities. In addition, the new permit was broader and encompassed other things.
Mr. Rodriguez addressed the letter that was sent to the attorney general.
He said that HRRC is replacing the track in the facility and extending the track to store more rail cars - which is a normal railroad activity. He also noted that HRRC has done some clearing for that and had a surveyor confirming all the activities taking place on the property. In addition, Mr. Rodriguez added that they “have not filled even a square foot of wetlands.”
According to Mr. Rodriguez, the railroad is using the old road bed construction from the original two rail lines built at the turn of the century.
HRC Operation -
Rodriguez noted that he doesn’t see that happening because he doesn’t think the economy warrants it.
He reported that HRRC is “not handling hazardous materials” and is “not required to have a permit to handle hazardous materials.”
Some contaminated soils contain hazardous materials and HRRC can’t handle that, he added. Other soils that do not contain hazardous materials we hope to do this after we’ve built a facility capable of handling materials.
Mr. Rodriguez noted that “fly ash” is from materials created by generating coal and says that HRRC has explored having shredded tires through the facility.
As far as the proposed new building, he told listeners that the loading of C&D would be in an enclosed area, it would reduce the noise generated by facility, and it would be more environmentally friendly.
3 Inquiries -
Noise - According to Rodriguez the generation of the noise at the facility was mainly the rock crusher and said he instructed them to discontinue use of that machine. He added that if the machine is needed again HRC will notify the first selectman’s office.
Trucks going through town with loads uncovered – Mr. Rodriguez said that all trucks were instructed long ago to go on I-84 and he was assured all of their trucks are covered.
Amount of material reoccurring at the facility – He stated that HRRC in town handled an average of 450 tons of demolition debris a day. He added that the permit had a blank for what the maximum amount would be in the in future, so the railroad put in 2,000 tons.
In regards to whether the railroad thinks it will ever do 2,000 tons on a consistent basis, Mr. Rodriguez said there isn’t that much material and added that the railroad operates on a fixed number of rail cars.
Mr. Rodriguez said he couldn’t tell residents and council members what the maximum tonnage would be in the future, but said he didn’t see the railroad exceeding 450 tons in the future.
Hours of Operation – Housatonic railroad set the hours of operation – 5 days a week 8 am to 4 pm. According to Mr. Rodriguez, they have operated on a Saturday and they may push the hours a couple of times either way. He added that the rail cars may run, but the hours of facility won’t.
Chairman Rodgers said he understood the position Mr. Rodriguez and the rail road was in, and subsequently asked if it was possible for HRC to narrow the scope of the permit.
Mr. Rodriguez explained that the permit is a long and expensive process.
Mr. Davis thanked Mr. Rodriguez for coming and complimented the crowd for showing restraint. He said he understood that it was a long permit process but asked Mr. Rodriguez if the railroad was willing to move forward and willing to modify their permit.
Mr. Rodriguez indicated he was willing to review the list of commodities to see if there are some they can remove because they will be unlikely to facilitate them.
Ms. Murray asked why Mr. Rodriguez to sum up why the community would benefit from Housatonic railroads application.
According to Mr. Rodriguez, the railroad takes an enormous amount of trucks off the highways, cuts down on the deterioration of the highways and additional costs associated with their repair and maintenance, and offers Newtown its own transfer facility to lower its cost.
Mr. Capeci asked if the tonnage was lower with the down economy and Mr. Rodriguez replied that it was down in January and February, but has picked back up again.
Mr. Amaral queried if the railroad was using the same driveway as the Hawleyville Fire Department uses and Mr. Rodriguez noted that that was temporary until the construction is finished.
Mr. DiCandido asked how the company was structured, if they were paying taxes to the town and who inspects the materials coming in. Mr. Rodriguez replied that HRRC owns the facility and has recently contracted out the handling of material to Newtown Transload, LLC. He added that the railroad will be paying taxes to the town on any of its equipment. In regards to the inspections, Mr. Rodriguez said that they have a person at the gate.
Mrs. Llodra questioned Mr. Rodriguez about their land use issues and said it was her understanding that the HRRC site was cited for a wetlands violation in 2007. Mr. Rodriguez stated that after HRRC was requested by the wetlands commission to have the railroad’s boundaries staked off. HRRC staked off the boundaries, but some of the markers disappeared so they had to have it re-staked. From a legal stand point, Mr. Rodriguez noted that if HRRC is filling someone else’s wetlands - that’s a problem, but he noted that if they are filling wetlands on their property it is under the Army Corps of Engineers not Newtown.
We don’t believe we’ve filled any wetlands on and off our property,” he added.
Mr. Aurelia asked Mr. Rodriguez about the size of the building and the containment of materials. Mr. Rodriguez replied that it was approximately “40 X 80” and said that the new application was for a “100 x 100” building, noting that the whole loading operation would be in there. Regarding the containment of materials, Mr. Rodriguez said HRRC will not allow more material in the door than they can contain in the containment area and said there will be no outside storage of C&D and contaminated soils – lumber will be stored outside.
Mr. Hemingway raised the question of who monitors the activity and wanted to know if the Army Corps of Engineers had ever been to the site. Mr. Rodriguez noted that the U.S. Service of Transportation would monitor the site but said they had never visited the site and also indicated that to his knowledge the army Corps of Engineers had never been either.
Mr. Pennarola questioned the fact that HRRC could handle contaminated but not hazardous materials and asked that Mr. Rodriguez give examples. Mr. Rodriguez said he couldn’t give any examples, but the EPA can.
At this time, Chairman Rodgers opened the floor to the public.
According to Dave Broughton, 137 Currituck Road, residents have been talking with the railroad over the last four years and gotten no response. He believes that now that Housatonic Railroad has been made to apply for a permit and the public is aware, they want to listen to the residents.
Mr. Broughton also expressed his concern about the noise indicating that he hears the diesel trucks starting up at 5 am and backing up.
Mike Sanchez, 137 Currituck Road, informed Mr. Rodriguez that he has been a resident for 15-years and is in the transportation logistics business noting that his company moves 450,000 tons a year by truck, by rail and by ocean going vessel.
About 6-years ago, Mr. Sanchez saw the railroad cut down trees on edges of property, bring in fill built it up and bring in lumber from where it was originally to extend their lumber storage area.
He urged residents and Council members alike to “trust what your mind says” and stated that “what’s in the permit they have the right to do.”
Mr. Sanchez also urged residents to see the pictures taken on the “Don’t Waste Hawleyville” website.
According to Mr. Sanchez, once the railroad gets their permit there is nothing residents can do about it.
He told Mr. Rodriguez that if he was sincere in limiting their hours and quantity than change the permit.
Mr. Sanchez concluded by noting that the diesel engines needed to operate the heavy machinery are very loud and the proposed building Mr. Rodriguez is proposing will be open on three sides doing very little to buffer the noise.
Alma Jensen, 46 Hawleyville Road, expressed her concern about the noise and said every time the machine starts the house vibrates.
She also expressed her concern that the wetlands in the area were being filled in, indicating that she had walked back there in 1996 and there were just two little bumps. Now, the resident said, it’s much more filled in and those areas are now totally built up. She believed it would be nice if the army corps of engineers would look at it.
Finally, she questioned Mr. Rodriguez about the materials – “clean gravel: - used to fill the area and believes brick and rebar were contained in that fill.
Lana Waterman, 46 Hawleyville Road, questioned whether there would be additional lighting.
She also asked if the railroad knew the storage area was in the middle of an aquifer and asked if they had any safety plans in place if there was a spill of contaminated materials.
When the resident asked if the railroad had to abide by the noise ordinances of the town, she was told no.
In addition, she expressed her fears of a possible fire and asked if they had a safety plan.
According to Mr. Rodriguez, OSHA inspects for safety and the fire marshal inspects regularly.
Chairman Rodgers stated that there are hazardous substances of all types not just soils.
Mr. Hemingway said the term clean demolition materials is an oxymoron.
Mr. Rodriguez stated that clean demolition material is material that does not contain substances the State determines cannot be contained in it.
Jim Mitchell, 17 Butterfield Road, questioned why residents would want a waste facility put on top of an aquifer and told Mr. Rodriguez that it sounded like the Town was at the whim of any material that might come across his desk.
He questioned why the railroad wouldn’t put a cap on things now until proper regulations agency puts a cap on it.
According to Mr. Rodriguez, the waste handled is to be determined and regulated by the DEP.
Ann Marie Mitchell, 17 Butterfield Road, the negative externalities on the community out way any positive externalities – t
She told Mr. Rodriguez that she felt a deep sense of a lack of faith and said everyone was concerned about their water, their safety and their community.
Mrs. Mitchell also expressed concern for the lack of clarity about the tonnage of waste and the hydraulic equipment that breaks that isn’t inside the facility.
She told Mr. Rodriguez that they can’t handle the railroad and asked him how he would feel if it was in his backyard.
Kathy Winkler, 149 Currituck Road, told Mr. Rodriguez that she originally thought they were a lumber yard and didn’t know they were a trash facility.
According to Mrs. Winkler it seems as though the railroad is exempt operating a trash facility.
She added that the railroads permit does affects the aquifer because they are in a recharge area.
Mrs. Winkler pointed out that there are wetlands in the area and pond about 500 feet away.
She concluded by stating that trucks do come in uncovered and trucks do park in front of the fire department.
Mr. Rodriguez pointed out that the railroad is exempt from a number of operations – lumber and terminal operations, but said that does not include waste management.
In regards to the permit application, Mr. Rodriguez noted that the aquifer zone was reviewed by the railroad’s attorney and met DEP standards.
Chairman Rogers summed up the affair saying it was a morass – a jurisdictional morass –
He advised those in attendance to explore all avenues and keep the dialogue with the railroad.
Chairman Rodgers told Mr. Rodriguez that the town is still going to oppose expansion of his activities and concluded by telling Mr. Rodriguez that “there has to be a way to narrow the particulars.”
He thanked everyone for coming and letting one another have their say and called for a five minute break at 11pm.
BREAK -
At 11:05pm, Chairman Rodgers reopened the meeting.
NEW BUSINESS (CONTINUED):
Discussion and Possible Action: Board of Finance resolution regarding reopening certain budget items per state authorization - Mr. Tait passed out a copies of Section 19 of House Bill 6901 which could allow municipalities to re-open budgets to account for American Recovery and Re-Investment Act (ARRA) Education Funds
After a brief discussion, Chairman Rodgers moved to table the matter until the next meeting.
UNFINISHED BUSINESS (CONTINUED):
Discussion of CIP, budget and other legislative functions – Carried Forward
Update on Guidelines: Traffic Calming – Mr. Davis said he was satisfied with the report and suggested that if the Police Commission doesn’t take action on the matter soon than the Council should re-visit the issue.
PUBLIC PARTICIPATION: none
ANNOUNCEMENTS: none
Chairman Rodgers invited Mr. Benson to join the Council in executive session.
.
At 11:15 pm, Mr. Capeci moved to go into executive session. Mr. DiCandido seconded and the motion was passed unanimously.
At this time the clerk left the meeting.
After exiting executive session, Mr. Pennarola moved, and Mrs. Llodra seconded, the following motion:
“The town is authorized to commence an action seeking a temporary injunction to stop the expansion and intensification of the non-conforming use by the Housatonic Railroad and its agents up to and including the completion of the hearing on the temporary injunction and to report to the Legislative Council its progress.
The motion passed unanimously.
Ted Swigart, Clerk
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