OLD LYME INLANDWETLANDS AND WATERCOURSES COMMISSION
REGULAR MEETING
NOVEMBER 18, 2014
Present were: Skip DiCamillo, Janet Bechtel, Stanley Kolber, Dave McCulloch, Mike Moran, Christian Tompkins, and Evan Griswold.
MINUTES OF REGULAR MEETING DATED OCTOBER 28,2014
Evan Griswold made a motion to approve the Regular Meeting Minutes dated October 28, 2014. Dave McCulloch seconded the motion. The motion passed unanimously.
MINUTES OF SITE WALK MEETING DATED NOVEMBER 8, 2014
Stanley Kolber made a motion to approve the Site Walk Meeting Minutes dated November 8, 2014 as amended. Evan Griswold seconded the motion. The motion passed unanimously.
2015 IWWC CALENDAR
The commission approved the 2015 IWWC Calendar. There will be no meeting in August or December.
It was noted that if a special meeting is needed the commission would be willing to meet.
NEW BUSINESS
14-24 - TOWN OF OLD LYME – OPEN SPACE COMMISSION – EKLUND POND – 316 FERRY ROAD – PHRAGMITE REMOVAL
Evan Griswold recused himself from the application due to the fact he is a member of the Open Space Commission.
Diana Atwood Johnson, Chair of the Open Space Commission explained the proposal. She noted that the Town of Old Lyme acquired a 7 acre pond behind the DEEP headquarters as a result of a subdivision on Sandpiper Lane. She further stated since the town acquired the pond approximately 4 years ago it is being taken over by phragmities. She presented photos of the area. She noted the phragmities have crowded out the natural vegetation and changed the habitat that has provided a home to many vulnerable species. She stated that phragmities have a substantial root system that can go several feet below the surface of the water and spread rapidly during the course of each season.
The Open Space Commission proposes to engage Snowy Egret Wetland Services, LLC of Old Saybrook to use their amphibious vehicle to cut the phragmities as part of a three or more year program to bring the phragmities under control. It is the goal of the commission to restore the vital role this particular wetlands play in supporting fish, amphibians, birds and other wildlife as well as protecting its unique natural resources.
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The IWWC reviewed pictures of the equipment being used for the removal as well as a list of the inventory of habitat in the area of the Eklund Pond.
Kolber asked if the cutting would have an impact on the creatures in the phragmities. Johnson explained the machine would only go down a few inches to cut. Kolber asked if the machinery would be sitting on the bottom of the pond. Johnson stated she did not think so. Moran stated it would only be used on the edges and would not be near the center of the pond. Kolber asked if there would be any ducks living in that area in the Fall. Johnson stated most of the birds in that area are migratory. It was stated they will not be nesting so if there are ducks they will be located in the open water. Kolber stated that ducks do seek shelter in the evening and do not spend twenty four hours a day sitting in the middle of the pond so there is some risk that there will be ducks in the area that is
effected and there is also some risk that the amphibians will have done what they do for the winter which is dig in. He further stated he assumed that the contractor has done this type of work and will minimize the disturbance to the critters in the pond. Johnson stated it will only take a day to do the work.
DiCamillo asked the commission if they would like to walk the site or if they would like to determine the activity to be of no jurisdiction. Kolber stated the pond itself is an inland wetland and therefore it is within this commission’s jurisdiction.
Bechtel stated since the Town owns the pond and the Open Space Commission is the applicant she stated it may fall under a ‘permitted use by right’ for maintenance. Kolber stated he felt the removal of the phragmities was a good thing and would encourage the return of wildlife however he felt it was a substantial amount of work and that this commission has a responsibility to protect and therefore does not feel it is appropriate to be issuing as a permit by right. He further felt it would set a bad precedent for future applications.
Dave McCulloch stated he did not feel the commission had anything to gain by walking the site or waiting additional time to issue the permit. DiCamillo concurred. McCulloch stated holding up the permit would put the applicant into the dead of winter to begin the work and he felt that would be too bad.
Stanley Kolber made a motion to issue an administrative permit and that it be published promptly. Dave McCulloch seconded the motion. The motion passed unanimously.
Evan Griswold will be seated for the remainder of the meeting.
WETLANDS PERMIT – 12-06 – APPLICATION OF ENOK PEDERSEN & DUBOIS FORESTRY MANAGEMENT – FOLLOW UP REPORT
Enok Pedersen was not present. The commission tabled this item until the January agenda.
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IWWC – November 18, 2014
14-23 – C –TEC SOLAR, LLC – 14 SHORT HILLS ROAD – TOM & SHIRLEY CAMPO – INSTALLATION OF SOLAR PV GROUND MOUNT CONSISTING OF 24 PANELS
Mr. Campo was present to discuss the application with the commission. The commission reviewed the site plan and photographs presented with the application. The commission asked Mr. Campo to stake out the location of the ground mount prior to the site walk on Saturday, November 22, 2014.
OLD BUSINESS
14-22 – ERIC & MARY KATE PARKER – 34 OLD SHORE ROAD – SINGLE FAMILY HOUSE, SEPTIC AND DRIVEWAY PROPOSED ON 11 ACRE LOT WITHIN 100’ WETLAND REVIEW AREA
Joe Wren was present to discuss the application with the commission on behalf of Eric and Mary Kate Parker. Wren stated the commission walked the site on November 8, 2014. Wren submitted 2 copies of a revised plan. He stated since the commission walked the site the applicants have agreed to changes that would have less impact to the upland review area. Wren noted there are no wetlands filling as part of this application. He stated the Parker’s have agreed to move the house closer to Rte. 156 which is approximately 100 ft. back from its original location to help preserve and increase the buffer around the possible vernal pool. He further stated originally a full basement was proposed but the applicant has agreed to only have a small basement to house the mechanicals and the rest will be a crawl space
or slab thereby reducing the amount of fill. Wren also noted the house has been reduced in size from a 5 bedroom home to a 4 bedroom which also shrinks the size of the septic system. He further stated the garage doors were oriented to the side of the house and they now will face the same direction of the house which will reduce the overall footprint and increase the distance from the wetlands.
Wren pointed out the limits of clearing on the plan. He noted on this 10 ½ acre site approximately ¾ of an acre will be disturbed. Wren also submitted a letter from Richard Snarski and read the letter into the record. Snarkski stated that he did not feel the construction of the house and driveway would have a significant impact on the amphibians because of the abundant woodland habitat in the vicinity.
Wren stated the surveyor indicated this property has had the same property lines prior to 1939 and the Old Lyme’s Zoning Regulations. He stated it was originally part of a 70 acre tract of land that was severed when the DOT put in Route 156 therefore it is an existing lot of record. He also noted there are public water and utilities to the property.
DiCamillo asked the proposed square footage of the house. Mr. Parker indicated it was approximately 3,000 sq. ft. and he noted the size has been reduced from 5 bedroom to 4 bedroom.
Kolber asked if Mr. Snarski and Mr. Wren were aware of the regulation that discusses the area of 400 ft. from a vernal pool being regulated. Wren stated Mr. Snarski references Best Management Practices in his letter which is a 100 ft. undisturbed buffer. Kolber asked what the source was of the Best Management Practices. Bechtel stated it is Michael Clemens. Kolber asked if the area would be maintained after construction as a buffer in a natural condition undisturbed. Wren stated that was the intent. Mr. Parker stated for the record that was his intent.
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Kolber asked if it was appropriate to ask for a conservation easement to ensure the maintenance of that property. He noted the plan does not go on the land record. Wren stated he had no problem making that area a conservation easement. Griswold asked who would hold the conservation easement and be responsible for the easement. Kolber stated the town would designate who would hold the easement. Griswold stated it might be easier to provide stipulations in the permit and the permit could be filed on the land records. Kolber stated he was not sure the permit itself could be recorded. Bechtel stated this commission has done that previously.
Kolber asked about the east side. He noted the garage is approximately 58 ft. from the wetland. Therefore Kolber asked if that area would also remain a buffer. Wren stated there are clearing limits shown on the plan. Kolber asked if that area could also be a conservation easement. Wren stated that the soil scientist indicated that the wetland on the east is a very low functioning wetland. Kolber stated it is this commission’s obligation to protect that wetland. Bechtel stated there is potential merit to consider a conservation easement because of the vernal pool but there really is no potential merit to consider a conservation easement on a low functioning, low value wetland. She further stated the problem with a conservation easement is they do become terribly burdensome to any organization to monitor them. She felt the commission was further ahead to either decide that the plan is acceptable or unacceptable and simply put the governance the commission wants on it and
make it a condition of the approval that this particular permit be filed on the town records.
It was also noted that the commission could also have the permit put on the actual plan. Kolber stated he feels that all wetlands are entitled to protection and he wants to be sure it is left in its current state. Kolber stated he is not suggesting the applicant has a need to revegetate the area after construction but felt it should be left in its present state. He also stated this should also be the obligation of any subsequent owner. Kolber stated he felt a conservation easement was a good way and expressed concern about assuring this area would be protected. DiCamillo stated the plan states it is a buffer up to the no clearing line and the plan is part of the approval. Griswold stated the plan is generally referenced in the deed which is on the town records. He noted the survey references all
of the information that was approved by this commission.
Kolber stated that Bechtel raised the point that enforcement of this area would be a burden on the town. Bechtel stated that under a conservation easement she believed it would be. Kolber stated assuming it is left just as described on the plan he asked what is the enforcement mechanism and who is responsible for that enforcement. Bechtel stated the enforcement would fall under the Inland Wetlands Commission. Bechtel stated this lot does not have any privacy. It is located on the corner of Shore Road and Old Shore Road and the state rest area. She stated this property is totally visible and therefore it would be easy to see if there was not compliance with the approval. Bechtel stated within a plan that this commission approves, all of the conditions that are on the plan require the applicant and the owner of the property to adhere to what was represented on the plan. She stated if they don’t this commission can take enforcement action. She stated there are hundreds of
people in Old Lyme that are down dirt roads and can’t be seen which have obtained approvals. Bechtel stated she felt the commission was getting too involved in legal concerns and not focusing on the issues of the wetlands commission. DiCamillo asked for a motion to move this project forward.
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Griswold stated this is a building lot and therefore under the law can be built on. DiCamillo stated this commission can regulate the activities. McCulloch stated the applicant has done a lot to minimize the impact on the area. DiCamillo stated it is the obligation of this commission to ensure the wetlands are protected. DiCamillo stated there is are ‘no clearing limits’ shown on the plan. He stated the commission usually requests a 20ft. buffer and this plan shows in excess of 50 ft.
Kolber asked Joe Wren to point out the silt fence location. It was explained it was on the 2nd sheet of the plan. Kolber clarified that there would be no clearing beyond that area. Wren indicated that was correct. Kolber stated the plan shows an area that will not be disturbed during construction but does it also state the area will not be disturbed after construction. DiCamillo stated that would be part of the approval by the commission. Kolber stated he wanted to be clear that he was not addressing the good faith bonafide ease or anything else of the people who want to build this house and nor does he have any opinion as to whether a house should be built on it. He stated his only concern is to the extent that the wetlands are protected during construction and post
construction.
Kolber made a motion that the area presently shown as not to be disturbed during construction be maintained as an undisturbed vegetative buffer hence forth and that it be a condition of our approval and in particular the possible vernal pool area setback of 100 ft. be maintained as an undisturbed area henceforth. Christian Tompkins seconded the motion.
Discussion:
Kolber asked Bechtel if it was her view that the burden described that would be imposed on whoever the town approved to be covenanted, should not be covenanted? Bechtel stated if the applicant is willing to put a conservation easement on the vernal pool area and there is an entity in the town that is willing to accept it she felt that was fine. McCulloch also added the permit be placed on the plan.
Wren clarified that a conservation easement will be placed around the 100 ft. review area by the vernal pool. DiCamillo stated that was correct. The applicant agreed to the conditions discussed. The owner, Parker noted he was under contract with the property but had not closed and was unclear if he could agree to an easement prior to taking ownership. He further stated once closed he is more than willing to record the easement on the land records. Kolber asked who owned the property. DiCamillo noted that the owner of the property signed the application. Kolber stated this commission is approving an application to do something by somebody other than the owner. Kolber stated the permit will have to be with the owner’s consent and these plans will also be submitted on behalf of the
owner. Wren stated these plans are contingent on the purchase of the property. Parker stated he made the application and the approval is specific to the application he presented. He stated therefore none of the approvals would be valid unless he purchases the property. Griswold stated often these approvals are conditions of the sale and contract agreement. Kolber stated he understood but he stated there has to be a mechanism to ensure that if the property is transferred that it is these conditions have been agreed to by the present owner. Griswold stated unless the property is transferred the owner has no further obligation or any rights. DiCamillo stated if the owner sells this property to anyone than that purchaser will have to go through this entire process again. Bechtel stated this application is approved for the Parkers. Kolber expressed concern that this approval runs with the land and the present land owner is not
involved. DiCamillo asked if this application is approved does the commission put itself in jeopardy.
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Kolber stated he did not see it in terms of jeopardy but felt the commission should do something that is effective.
Kolber stated the permit is issued conditional on the proposition that the applicant become the owner of the property and that as owner will assure filing of these plans in an appropriate way. Tompkins stated all of the approval is already contingent upon the Parkers taking ownership. Kolber stated we cannot assure if he is not the owner that this approval becomes part of the land records. DiCamillo suggested the approval include that this approval is contingent upon the Parkers purchasing the property.
Griswold stated he writes contracts all the time for buyers and sellers contingent upon town approval for various things. Griswold stated the permit does not become enforceable until the buyer purchases the property. Kolber stated when he did deals that involved contingencies he would have the seller obligate himself to file those papers with all the appropriate approvals and the buyers would pay for it but the seller would be present. He stated that is how it is done in New York. DiCamillo stated in his mind the only necessary wording is contingent upon the sale of this property to the Parkers. He stated if they decide not to buy it the approval is null and void.
Kolber stated the approval is contingent upon once the applicant gets entitled we confirm this application. Kolber stated the applicant needs to submit a letter stating he purchased the property and the commission confirms his approval. No meeting is required.
The motion passed unanimously.
DiCamillo stated the plan will indicate a buffer up to the no clearing line and the plan is part of the approval and the actual permit will be put on the site plan.
REQUEST FOR EXTENSION OF IWWC PERMIT 09-28 – JOHN AND MARY SZODOWSKI- 25 CONNECTICUT ROAD
The commission walked the site on November 8, 2014. Mr. Szodowski stated the commission suggested moving the house ten feet forward. He asked if could be limited to three feet forward to place the house even with the house next door. He stated the 10 ft. would put the house into a tree. Szodowski stated this would also allow him area to place an underground tank. He noted all of this would be beyond the 100 ft. review area. DiCamillo asked if he agreed to the 20 ft. buffer in the rear. Szodowski stated he had no problem with maintaining the buffer. Kolber stated there is currently existing vegetation that is more than just grass. Kolber stated he would like the existing buffer undisturbed. Szodowski made the changes to the plan and initialed it and submitted for the
file.
Mr. Szodowski drew the buffer area on the plan and initialed it and submitted as the approved plan.
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Minutes – November 18, 2014
Stanley Kolber made a motion to approve the application as filed and amended in handwriting this evening and the permit be conditional on non-disturbance of an existing natural vegetative buffer reflected on the plan by a tree line and an additional buffer be maintained of 20 ft. toward the house. Evan Griswold seconded the motion. The motion passed unanimously.
14-21 LONA RIVER FARMS (RIVES POTTS) – 15-2 TANTUMMAHEAG ROAD – INSTALLATION AND MAINTENANCE OF DRIVEWAY
DiCamillo stated the commission walked the site on Saturday, November 8, 2014. The commission also reviewed the mapping that was done for a prior application at that site that showed some of the wetlands flagging on the site. Mr. Potts was not at the meeting. The commission agreed to table any action to their next regular meeting.
OLD BUSINESS
ADMINISTRATIVE AND CORRESPONDENCE ITEMS
Stanley Kolber discussed the blue booklet entitled “Landscape Suggestions for Inland Waterside Properties” that was written by the Old Lyme Conservation Commission and the Inland Wetlands Commission and Marianne Pfeiffer back in 2006. He noted it was a great tool for applicants with diagrams as well as explanations and felt it was wonderful.
Dave McCulloch expressed concern about a property located on Boston Post Road that had been clear cut down to the pond that is currently housing goats and chickens.
Evan Griswold expressed concern about a property located at the South End of Whippoorwill Road that appears to be dumping into the wetlands.
The commission would like Keith Rosenfeld to visit both properties.
Respectfully submitted,
Kim Groves
Land Use Administrator
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