TOWN OF OLD SAYBROOK
Inland Wetlands & Watercourses Commission
302 Main Street Old Saybrook, Connecticut 06475-1741
Telephone (860) 395-3131 FAX (860) 395-1216
MINUTES
SPECIAL MEETING – “THE PRESERVE”
Thursday, February 2, 2006 at 7:30 p.m.
OLD SAYBROOK MIDDLE SCHOOL
60 SHEFFIELD STREET
I. CALL TO ORDER
At 7:35 p.m., Chairman Paul Smith called to order a special meeting of the Inland Wetlands and Watercourses Commission (IWWC) for the purpose of deliberating Application #05-016.
II. ROLL CALL
Attendant Members Absent Members
Paul Smith, Chairman None.
Charles Sohl, Vice Chairman, Zoning Rep.
William Pollock, Secretary
Kevin Zawoy, Regular Member
Frank Reichart, Economic Development Rep.
Robert McIntyre, Planning Rep.
Judy Preston, Conservation Rep.
Kim Gallagher, Alternate Member
Brendan McKeown, Alternate Member
Town Staff and Consultants
Damon Hearne, Wetlands Enforcement Officer
Whitney McKendree Moore, Recording Clerk
Michael Cronin, Esq., Consulting Legal Counsel
Chairman Smith began by noting that the seven Regular Members were all present for this meeting, and will be voting on this application. The IWWC’s two Alternate Members were excused before deliberations began.
III. DELIBERATION
05-016 “The Preserve” – River Sound Development, LLC
Application to construct an open-space subdivision country club, golf course community (934 acres total) and open space (542.2 acres) within 100 feet of wetlands (114.5 acres total wetlands).
Residence Conservation C District, Aquifer Protection District
Applicant: River Sound Development, LLC Agent: Attorney David Royston
Attorney Cronin was invited to speak on procedures pertinent to these deliberations and to review the legal context of this matter, which he summarized as follows:
§ The IWWC approved an application in July 2000 for an 18-hole golf course on this property. “Should these particular deliberations become subject to review,” Mr. Cronin stated, “arguments can be made both ways about revising the previous decision.”
§ The Zoning Commission (ZC) considered the concept behind this application in September 2003, granting the approval of a new zone (Residential Zone C) which set forth standards for projects of this type, such as requiring a process for preliminary plans and a commitment that 50% of the property be open space. The Zoning Commission held hearings subjecting those regulations to public scrutiny and to feedback from all adjacent municipalities. The regulation then returned to the Zoning Commission for deliberation, where it was approved and is now law.
§ The Planning Commission (PC) approved this applicant’s preliminary plan for open space subdivision and sent it to the IWWC for feedback in October 2004. The IWWC issued a report to the PC saying they did not see anything egregiously wrong, but did not commit to whether their decision would be positive or negative in the future. Receiving no obstacles, the PC provided a detailed report indicating the application seemed consistent with goals of the Town’s Master Plan and that a golf course could be included if properly designed.
“Legally,” Attorney Cronin stated, “that is where we are.” He said that, although other boards have considered this matter, the IWWC is not bound by previous decisions. It must, however, accept that Residential Zone C exists, that it allows cluster housing on the property, and that the required amount of open space has been set aside.
The issue of the golf course has been prominent. Attorney Cronin said that, legally, golf courses are not regulated activities. Our regulations allow golf courses as a special use in Zone C. The golf course has to be a minimum of 6,200 yards long, containing a minimum of 18 holes, and constructed in accordance with United States Golf Association standards. Attorney Cronin interpreted the Town’s regulations as meaning that, if a golf course is being proposed in Zone C, it has to be a good one.
Chairman Smith then raised the issue of what he called “procedural semantics.” There are four options available to the IWWC: accept; accept with conditions; deny; or deny without prejudice, which enables the applicant to come back with a different application. He pointed out that any decision either reducing the size of the proposed golf course or eliminating it altogether would essentially constitute a denial. Attorney Cronin later explained that a denial would need to include technical and scientific facts provided by experts. He pointed out the distinction between “an acceptance with modifications to exclude the golf course” versus “a denial because of the golf course.” He encouraged everyone to re-read their regulations, with particular attention to any words that
are italicized, as these are key definitions.
Discussion ensued regarding the meaning of “feasible and prudent alternatives,” which can be summarized as follows: Considering whether or not an alternative is feasible entails looking at the issues in terms of mechanics – i.e., determining that it can be achieved mechanically, that its construction will obtain the designed result. On the other hand, the matter of prudence entails financial considerations – i.e., determining any social benefits that will be derived.
The great responsibility of the IWWC is to balance two competing interests: the need for economic development versus the need to protect wetlands and watercourses. In making such determinations, the Commissioners must consider the relationship between short-term and long-term impacts. For example, they could see an immediate benefit with residual problems causing irreversible loss of watercourse or wetland resources.
One section of the wetland regulations allows the Commissioners to consider impacts to wildlife habitat in the regulated buffer area, while another section requires that impacts to wildlife within a wetland be limited to how a change in the wildlife impacts the wetland or watercourse. Similarly, one section requires specific documentation of likely impacts, while another is less stringent if the impacts cited are merely probable.
Judith Preston and Kevin Zawoy asked about these conflicts, arriving at an answer, according to Attorney Cronin, that the IWWC must simply support their findings with scientific fact. For example, Dr. Clemens says that frogs affect water quality, which is a physical impact as defined here. Commissioners must be sure to consider the ways in which the applicant proposes to mitigate, or compensate for, any adverse impacts that are projected. “If you find an impact is likely to occur, you have to be specific in the technical aspects of your finding,” Attorney Cronin said.
Attorney Cronin told the IWWC that they have wide discretion as to whether or not to believe the experts. He compared their role to that of jurors. “If you’re on a jury,” he said, “you can believe who you want. The credibility of your choice does not have to be explained.” In considering the testimony of non-experts, such as members of the general public, he reminded the Commissioners that “technical issues require expert testimony to be the basis.” He went on to reiterate that their responsibility is to balance the need to protect fragile wetlands with the need for economic growth. “You are not the DEP,” he said, “You are about balance. The West Haven case was about feasible and prudent activities.” He cautioned that the
Commission must first define the significant impact of a given activity and then try to identify a feasible and prudent alternative. If no feasible and prudent alternative exists, they are then facing “the balance issue” of weighing wetland impacts against economic benefits. Attorney Cronin concluded by stating that the IWWC has the right to indicate alternatives, but they are not required to do so. “You might not find a reasonable alternative, but that does not mean you have to grant approval,” he stated.
The remainder of the meeting was devoted to administrative considerations such as scheduling agenda items and how best to arrange for the presence of Town consultants. Commissioners requested that Damon Hearne develop a checklist of potential impacts. With that checklist and the information digested from their extensive record of 300 exhibits, each Commissioner is charged with the responsibility to consider all the potential impacts and whether or not they comprise activity negative enough to reject the project.
Their goal is to either accept (or accept with conditions) or deny (or deny “without prejudice”) the application. An acceptance can impose reasonable conditions (for example, the IWWC could decide to require a subsequent pump test – or to have it conducted throughout an entire year); a denial can be given “without prejudice,” simply indicating areas of general concern.
Members agreed that the next meeting should focus on the golf course, and that they will address that matter “hole by hole.” The subsequent agenda will be determined at that meeting and might include a decision to focus similarly on other activities, such as “Roads and Bridges” or “Leaching and Water Treatment.” Members requested time in preface to those discussions in order to consider more general topics such as the size they should require for buffer zones. They also requested the tracking of deferred questions, along with the tracking of concerns per item (hole by hole, vernal pool by vernal pool, et cetera). In order to achieve the two-month deadline, the Commissioners decided to double their present schedule and meet additionally on Monday nights as possible until a
decision is reached. The meetings will be held in the library of the Old Saybrook Middle School, 60 Sheffield Street at 7:30 p.m.
IV. ADJOURNMENT
Chairman Smith then requested a motion to adjourn which was made at 10:45 p.m. as follows:
MOTION to adjourn meeting until Monday, February 6th at 7:30 p.m. in the library of the Old Saybrook Middle School. MADE by R. McIntyre. SECONDED by
W. Pollock. VOTED IN FAVOR: K. Zawoy, R. McIntyre, P. Smith, C. Sohl, F. Reichart, J. Preston, W. Pollock.; OPPOSED: none; ABSTAINED: none; APPROVED: 7-0-0.
Respectfully Submitted,
Whitney McKendree Moore
Recording Clerk
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