MEEETING MINUTES
OLD LYME INLAND WETLANDS AND WATERCOURSES COMMISSION
PUBLIC HEARING AND REGULAR MEETING
TUESDAY, AUGUST 26, 2008
PRESENT WERE: Janet Bechtel, Robb Linde, Don Willis, Sabine O’Donnell, Skip DiCamillo and Dave McCulloch. Also present were: Attorney Eric Knapp and Ann Brown.
MINUTES OF PREVIOUS MEETING DATED JULY 22, 2008
Sabine O’Donnell noted a correction should be made on Page 7 in the third paragraph indicating that “soil” scientist should be changed to “wetland” scientist.
Dave McCulloch made a motion to approve the minutes with the correction. Robb Linde seconded the motion. The motion passed unanimously.
NEW BUSINESS
08-13 – Corey & Kristin Bullock – 30 Champlain Drive – Proposed house addition, garage, filling and grading.
The commission discussed the application with Mr. Bullock. Bechtel stated this application previously came before the commission for a garage addition which was proposed off the side of the house toward the wetland boundary. Bullock indicated that was correct. Bechtel asked the applicant if the current proposal was to place the garage behind the house with an access drive into the property and inquired how close the driveway was to the wetland. The applicant indicated it was approximately 8 feet. Bechtel asked what the grade was down to the wetland. Bullock indicated it was about 3 feet and stated he would be willing to be build a retaining wall if necessary. The commission expressed concerns about the close proximity of the driveway to the wetland stream. Bechtel
asked the applicant to stake out the improvements on the site. The commission agreed to set a site walk for Wednesday, September 10, 2008 at 5:30 p.m.
08-14 – Bedri & Daniel Babasuli – 20 Grassy Hill Road – Proposed Driveway Construction to provide off road parking and septic system repair.
The commission received the new application. Bechtel noted the prior application has been formally withdrawn and is removed as an agenda item under new business. Bechtel also noted this was the third application for this site. The commission noted that neither the applicant nor his representative were
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present at the meeting to explain the difference between this application and the previous applications. The commission agreed to review the new application and see how it compares to the prior applications. The applicant should be prepared to answer questions at the next meeting.
08-15 – Pramod & Minexiban P.W. Patel – 268 Shore Road – Proposed Retail Facility and Associated Parking
The commission briefly reviewed the plans submitted by the applicant. Bechtel requested this application be forwarded to Mr. Metcalf for his review and comments. Brown suggested that the applicant’s engineer stake out the proposed site improvements. The commission agreed to set a site walk for Wednesday, September 10, 2008 at 5:50 p.m.
08-16 – Tom McConnell – 3 Mill Pond Lane – Site improvements to include retaining walls, terraces, fire pit and planting beds.
Brown noted that the commission had approved a prior application at this property when additions and grading were done at the site. Tracey Miller, Landscape Architect, Anne Penniman Associates, LLC, presented the proposal. Ms. Miller discussed and reviewed the proposed improvements to the property. The commission agreed to walk the site for Wednesday, September 10th at 6:30 p.m.
PUBLIC HEARING
SHORT HILLS PROPERTIES, LLC – 16-2 SHORT HILLS ROAD AND 20 SHORT HILLS ROAD – 7 LOT SUBDIVISION
Chris Smith, Land Use Attorney, with the firm Shipman and Goodwin asked if the commission would be amendable to presenting all their comments and concerns, along with the public, and then the applicant could respond to the issues all at one time.
Bechtel asked Attorney Knapp to respond to the question raised at the last meeting, which was what is the Inland/Wetlands Commission’s ability to consider the impact of potential future development when reviewing this present application. Bechtel stated it is the understanding of this commission that what is under review is what is on the plans before the commission.
Knapp stated that Conn. Gen. Stat’s 22a-41 contain factors which wetlands commissions should consider when reviewing any application. Knapp stated the commission should consider “irreversible and irretrievable loss of wetland or watercourse resources which would be caused by the proposed regulated activity, including the extent to which such activity would foreclose a future ability to protect, enhance or restore such resources”. Knapp stated, if the commission is loosing the ability to protect the wetlands by the virtue of this permit (as far as future activities go) the commission can certainly consider how this permit would be affected by future activities.
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Knapp further stated the commission is within its rights to ask the applicant to provide information on whether possible future activities might require this land for mitigation efforts or other efforts which would “protect, enhance or restore” wetlands. Knapp also stated if the applicant indicates that there will be no possible need for this land on any future application, it is taking a risk of having its future permit application denied because it will no longer be able to use this property to perform mitigation. Knapp concluded by stating he felt the biggest risk might be on the future application not necessarily on this application. Knapp stated the commission should ask the applicant whether this land will be needed in any way for potential future developments and to the extent that
they demonstrate that this it is not needed for future activities then this should be dealt with as a separate application from any potential future development.
Bechtel asked, if this application was approved and the commission discovered that additional traffic required the road to be significantly upgraded would the town then have to come before this commission with an application. Knapp stated the town is not exempt from wetland requirements. Knapp stated the town does however have the right to obtain property it needs to complete the improvements. Knapp further noted that the applicant would not have those rights. Knapp stated the road in question is already a town road and the town is obligated to provide service along that road and therefore future traffic along this road is not necessarily relevant to these seven lots. Knapp stated this commission does not have jurisdiction over traffic; therefore the only way the commission can bring this
into their jurisdiction is to demonstrate that there are harms to the wetland by the road that is being proposed in this application. Brown asked if it would be appropriate to require the applicant to provide testimony as to why they feel the current roadway would not require upgrading to service the additional seven lots.
Linde stated the applicant indicated at the last meeting they would need to use a wood road or unimproved road to access the site and it is his understanding that roadway might be going through some regulated wetland area and therefore is the commission allowed to consider that roadway as part of this application. Knapp asked if this was part of the seven lot subdivision proposal. Linde stated the applicant indicated that they would need to use that roadway for construction equipment on this proposal. Knapp stated to the extent that there will be travel over a wetland to do construction then it should be part of this application as a wetland impact.
Chris Smith stated that the applicant is proposing to improve that road out to the Boston Post Road with the subdivision activity. Smith stated the applicant proposes no improvements to Short Hills Road accept at the intersection of the subdivision lot and Short Hills Road. Smith also noted that these issues are Planning issues. Smith stated that Bennett will testify that if there were any future development to this area there is nothing that has to be done to the infrastructure of this roadway as proposed that would involve a regulated activity to accommodate that future development. He further noted nothing would have to be done to the intersection because it would be up to town standards. Smith stated the roadway out to the Post Road is currently being used commercially to access the
stump dump and the applicant is proposing no improvements and the wetland scientist, Penny Sharp, will testify this will not a regulated activity.
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Smith introduced Marty Smith, Principle Owner of Short Hills Properties, LLC and Mike Bennett, Engineer and Professional Land Surveyor and Penny Sharp, Wetland Scientist. Smith also submitted resumes on each of the applicant’s representatives as part of the record.
Smith asked Mr. Bennett hypothetically, if there were to be a development to the north of the subdivision would any of the land involved in the subdivision be required to mitigate any regulated activities associated with a development of that property located to the north of this proposed subdivision. Bennett stated that the proposed subdivision is self-contained. He further stated if the roadway is going to be continued in the future, there is a crest of the roadway which then begins to slope downwards to the north and any storm drainage that would be collected would be distributed toward the west or the east, in land that is currently owned by Mr. Tooker and there is no need to conduct any storm drainage through this current proposed system because it will be intercepted prior to the system and shed off to
the east or the west.
Attorney Smith asked Bennett how many feet to the crown; Smith indicated it would be approximately 350 ft. north. Smith then asked if any of the runoff or sheet flow or storm water would be directed north. Bennett stated it would go north and be distributed in an easterly or westerly direction not in a southerly direction. Bennett stated this would be running along the crest of the hill and therefore would not slope south. Smith stated in the south westerly corner of Lot 1, where the proposed subdivision road will be located and meet Short Hills Road, that with the improvements that will be done there, that if someone were to improve Short Hills Road to meet town standards, that none of the proposed subdivision property including Lot 1 would not have to be utilized to accommodate those road
improvements. Bennett indicated that was correct that none of the finished lots would have to be utilized to encompass any road improvements at the intersection of the new road and Short Hills Road. Bennett stated Lot 1 is currently almost 80’ off of Short Hills Road, thus there is plenty of room to make any additional improvements. Bennett further stated what is proposed he feels is adequate for this and future conditions at this intersection. Smith stated that when a Planning Commission is reviewing a subdivision proposal the Planning Commission is limited in looking at road impacts associated with the internal road system for the subdivision and at the intersection where the proposed subdivision road intersects with the public street. Smith further stated it is the town’s responsibility, if this is zoned for this use, to make those accommodations if there is perceived to be a public health and safety concern. Smith stated if this
were to happen down the road then whoever was to do those improvements would be responsible to come back to this commission and seek approval with any regulated activities associated with those improvements. Smith further noted from a Planning perspective it is not the landowner’s responsibility to make those improvements.
Knapp stated the commission is allowed, however, to look at inevitable impacts to wetlands that are deemed necessary to this subdivision. Bechtel stated the relative question would be does this seven lot subdivision have any inevitable consequences to the wetland system on Short Hills Road which would provide the access. Smith stated that Short Hills Road is not an issue for this landowner anymore than any other landowner who wants to subdivide and meets all the subdivision requirements of their property. Knapp asked if there were wetlands along Short Hills Road that would be affected by future
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developments or improvements to Short Hills. Smith stated if anyone were to improve Short Hills Road to town standards it would certainly involve a regulated activity.
O’Donnell stated at the last meeting there were photographs submitted to the commission and she thought they might provide Attorney Knapp with a view of the area. O’Donnell asked again if the commission was allowed to look at this impact. Knapp stated once again that the commission can look at the impact to the extent that these seven lots make inevitable that the improvements to Short Hills Road would involve a regulated activity. Knapp stated the testimony this evening has indicated that this is not the case because there is not so much additional traffic on Short Hills from these seven lots that improvements will be required. Knapp stated more cars on Short Hills Road are not an impact that can be considered.
Linde asked if the commission could require, as part of their approval, that if improvements had to be made to Short Hills Road that the applicant would have to come back before the commission. Knapp indicated that was not an option. He further stated it is not the applicant’s responsibility to deal with Short Hills Road. DiCamillo asked if the commission could request the town engineer’s assessment of the roadway. Knapp stated the commission could request any information they would like on the application.
Mike Bennett stated on Drawing 15 the emergency access easement is depicted. Bennett stated the easement runs along the existing gravel road through the Tooker Property and there are no wetlands near or adjacent to the roadway until the power lines are passed. He further noted just north of the power line there is a very small wetland located inside an excavated gravel pit and that wetland is 170 feet from the existing gravel road in which no improvements are proposed. He noted as the roadway continues north there is another wetland which is approximately 280 feet from the existing gravel road and then you travel onto the piece of property which Short Hills is acquiring from the Kus’s which is 14 acres and there are no wetlands on or near the roadway. He stated once onto the Kus property you tie
into an existing roadway which is a commercial road which is used by the Kus Family for access to their stump dump.
Attorney Smith asked Ms. Sharp if she was a Professional Wetlands Scientist. Sharp indicated for the record she was a Certified Wetland Scientist. Smith asked Sharp if she was familiar with the proposal to accommodate the neighbors on Short Hills Road to utilize the old existing private roadway out to the Post Road for the commercial trucks for the development of this subdivision. Sharp indicated she was familiar with that. Smith asked if in her opinion the utilization of that existing gravel roadway would involve a regulated activity. Sharp stated no for the record. Smith asked if that activity would result in an adverse impact to the wetland. Sharp stated the wetlands are more than 100 feet away from the road and the activity would have no impact. Smith also asked if the
utilization of that roadway for emergency vehicular access would involve a regulated activity that would need to be reviewed and approved by this commission. Sharp replied no.
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Bechtel asked if any clearing needed to be done on the access road going into the site from the north going toward Boston Post Road. Bennett replied no. Bechtel asked how close the nearest wetlands was located to the access road. Bennett stated approximately 170 feet. Bechtel asked if the rest of the property had been mapped for wetlands. Bennett indicated the entire property has been mapped. McCulloch asked if all construction equipment would go through this road. Smith stated the proposal is to use this roadway for all construction. DiCamillo asked if Nicoja Way is a private road. Marty Smith reported that they have obtained an easement over that road. O’Donnell asked for the roadway width. Bennett stated the width was approximately 16 to 18 feet
wide and currently has shoulders to enable passing within the roadway.
Attorney Cronin, for the applicant, stated he felt a limited application had been presented. Cronin stated this is not a seven lot subdivision. Cronin stated if certain activity is inevitable the applicant can be required to supply additional information. He stated under the regulations of this commission details are required to be shown on the plan and the wetlands crossing on Short Hills Road is not shown on the plan. He further added the proposed access out to the Boston Post Road is not shown on any plan. He stated the applicant has noted on the record this area has been mapped. Cronin stated this application is the first stage of a rather substantial subdivision. Cronin submitted a letter into the record dated July 10, 2008 in which the applicant had sent out to the
neighbors. Cronin read the relative portions into the record and submitted the letter for the file. He noted the letter indicates that the initial application is for 7 lots on 25 acres on a new town road to be built over an existing gravel road off of Short Hills Road. He stated the second point in the letter states that the applicant’s company has purchased 256 acres between Short Hills Road and Route 1 and has done extensive environmental testing to show that the property will support at least 85 lots. (A copy of the letter is attached for the record).
Cronin discussed several items. The first being the impact on the wetland area that might occur as a result of the improvements to the roadway. The second is if the commission approves this application they may be precluded from requiring the applicant to show reasonable and prudent alternatives for the proposed plan. Cronin stated the proposed plan now will loose the alternative of having a different access into this property. He stated that his clients feel that the primary access to this development should not be over Short Hills Road (because it is inadequate) but accessed from the Post Road. He stated they have the access to do it and it is already an existing roadway and therefore we feel it should be considered as a reasonable alternative to what is proposed. Cronin requested
that the commission ask the applicant to expand the application to include all the wetlands testing that was done including the crossing on Short Hills Road and the consequences of improving that crossing either as part of this application or a new application.
Cronin stated with regard to the requirement of the improvement of the roadways he researched this issue and he feels there is an exception that a town must improve a roadway at its sole cost. Cronin stated if the proposed development creates a public hazard the applicant can be required to make the necessary improvements. He added not necessarily up to town standards.
Linde stated the commission has heard expert testimony before them stating that there are no adverse impacts on the wetland and the sole purpose of this commission is that. Linde when on to say, Mr.
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Cronin you have made a lot of interesting points but we have not heard any expert testimony to the contrary. Do you have any expert testimony to the contrary? Cronin stated he did not.
Knapp and Cronin discussed the text change that was withdrawn from the Zoning Commission. Knapp stated that Attorney Cronin is suggesting that right now the applicant could do certain things on that property and is also suggesting that there are plans at the town hall that show certain things, therefore Knapp asked if there were plans at the town hall that are consistent with what the present zoning is on that site. Cronin stated that there were not. Knapp asked Cronin if the next phase was inevitable with or without this application. Knapp stated in other words do they have to file the next phase. Cronin stated they did not. Knapp stated if the applicant were to take Cronin’s advice and make the primary access from Route 1 for this property would there be wetlands impact towards
Route 1. Cronin stated he did not know specifically. Cronin stated the commission should ask Mr. Metcalf what impact the changes in traffic on the roadway would have. Knapp asked Cronin if his position was that these seven lots were a problem. Cronin indicated he felt the seven lots were a problem.
Cronin stated the two vernal pools in the western portion of the property are located in an area that is proposed to be open space. He noted that in Wendy Goodfriend’s letter dated July 21, 2008, Item 13 stated the pools should be protected and the envelope encompasses an area where there are breeding adults and dispersing juveniles. Cronin stated only a portion of the envelope is located on site. He further stated that looking at this area it falls short of the 75 percent protection. Cronin asked the commission, based on the standards set forth in Goodfriend’s letter, are these two pools preserved within the proposed plan?
Penny Sharpe stated looking at the subdivision and the vernal pools on the site and the amount of open space around them there is adequate protection. Cronin stated, then as long as the area around the vernal pools is not developed than they are preserved. Sharpe indicated that was correct. Attorney Smith noted that Sharp has responded to Attorney Cronin’s question. Bechtel noted what the current jurisdiction is for the commission within the regulations. Smith stated that what is proposed is not going to have an adverse impact to the vernal pools.
Bechtel asked about the sequence of clearing on the site. She further stated if the applicant is stating they want to clear all the lots it could have a significant impact on habitat that could affect the vernal pools. Cronin stated within the current plan it is very difficult to comply with the standards set forth in Wendy Goodfriend’s letter to the commission. O’Donnell stated she would like to hear from the expert, Wendy Goodfriend, has to how the vernal issue has been satisfied. Bechtel stated she would not be an expert and that Ms. Goodfriend only sited what is preferred but not what is required.
Michael Boardman – 4 Maywood Drive
Boardman expressed concern about the amount of traffic that seven lots would have on the area. Boardman stated the testimony this evening indicated that the access over the Kus property into the site proposed no regulated activity, therefore why is it not being considered as a reasonable and prudent alternative to Short Hills Road.
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Victoria Lanier – Short Hills Road
Ms. Lanier stated she wanted to make the point regarding inevitability that on Short Hills Road there is a substantial wetland going into that property. Therefore, she reiterated that she felt the Boston Post Road entrance does not impact the wetlands so is it not inevitable that the seven lots which would double the traffic there would be an impact to that wetland because there is no other way to access this development without going through that wetland. She further state the current road in that area is approximately 9 feet wide and the testimony tonight indicated that the wood road is approximately 14 to 16 feet wide.
Howard Tooker – Library Lane
Mr. Tooker stated he has owned this land for a long time. He further stated he currently lives on Library Lane and there are 54 houses on this dead end street and it goes across a wetland and has no emergency access.
Peter Strauss – 75 Flat Rock Hill Road
Mr. Straus suggested that since the town has to appear before the commission in relation to anything that would happen to Short Hills Road, he wondered what the applicant’s position would be if the access to Short Hills Road were denied. Straus suggested the Inland Wetlands Commission table their action until the town makes a determination as to the status of Short Hills Road. Knapp explained that there are statutory deadlines for reviewing this application, therefore the commission cannot table this application indefinitely. Knapp further stated that the town is under no obligation to come before this commission until they are required to do whatever improvements are necessary to Short Hills Road. Knapp stated the commission has to act within their deadline based on the information that has
been presented. Knapp further stated the applicant cannot be held up based on conditions beyond his control. Knapp stated absence harm to wetlands that are inevitable because of this application the commission is limited in what it can do.
Michael Sullivan – 5 Maywood Drive
Mr. Sullivan asked if the plans that are currently in town hall are up to date. Bechtel stated that is not a wetland impact for this application. She further stated that whatever plans might be at town hall other than this one does not concern this commission. Brown stated that revised plans have been submitted this evening and will be available tomorrow at town hall.
Michael Boardman – 4 Maywood Drive
Mr. Boardman asked if the current plans show improvements to Short Hills Road. Bechtel indicated the improvements were only down to the first culvert. Bennet reviewed the plans with Mr. Boardman. Attorney Smith stated that the only improvements were located at the intersection of the subdivision road and Short Hills Road.
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Michael Sullivan – 5 Maywood Drive
Sullivan asked if anything had been done to address the wetlands located on the other side of Short Hills Road. Smith stated there is no activity proposed to the west and it is the testimony of Penny Sharp that there will be no impact.
Michael Boardman – 4 Maywood Drive
Boardman asked about the placement of the pipe on Short Hills Road and where the water will be entering into the site. Bennett stated the water will be coming down from the west side of the proposed road through a grass swale and is being collected in a catch basin. Bennett reviewed the area on the map with Boardman. Boardman asked how the water from the pipe being dumped into the wetland does not affect the wetland. Bechtel stated that water in a wetland is not a problem and there are drainage analysis reports that have been reviewed by the commission’s engineer to determine if there are any issues with the system.
Boardman stated that the water in itself may not pose an adverse impact on the wetland, but asked if the construction of the drainage has an impact. Penny Sharp stated the grass swales are water quality treatments that remove sediments that might end up in the wetland otherwise. Sharp stated the system is also not picking up much of the runoff from the road because the main part of the runoff from the road is being collected in a detention basin at the cul-de-sac.
Attorney Smith stated that the inevitability of off-site impacts with a subdivision application is not within the jurisdiction of the Planning Commission and not within the jurisdiction of the Wetlands Commission. Smith stated the applicant is not asking for this commission to approve the seven lots. He further stated that these seven lots, the construction of the roadway and detention basins involve conduct. He noted some of that conduct involves regulated activities. He stated the regulated activities require review and approval by this commission. Therefore, he stated the applicant is asking approval for certain regulated activities associated with the road, vernal pools, detention basin. He noted the plan demonstrates house locations on each lot along with septic locations. He
noted that there is a wetland area located on Lot #5 and if this application is approved the regulated activity on that lot is approved. He further stated if the lot is purchased and any changes are made to the house location then that homebuyer is required to come back before this commission for approval and that issue pertains to any of the lots with regulated activities.
Linde stated that it has been the practice of this commission to ask its applicants to show limits of clearing that they are comfortable with putting on plans, and limit that clearing is to prevent a lot that is not under the purview of this commission to protect the wetlands. He further stated that the limits of clearing have a distinct impact on the wetland because of the water quality that runs off the soil versus a paved surface. Linde stated the impact of the subdivision would be very different it is were clear cut versus if it were not clear cut. Linde asked if the limits of clearing on the plan could be considered as part of the approval as they are shown on the map. Smith stated if the commission approved the subdivision and stated that on Lot #2 that no building can take place without
coming back before this
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commission then the commission is imposing a conservation easement over Lot 2. Smith stated unless there is an impact to a wetland it would require a permit, the developer should be able to retain the right to do whatever he would like with that property as long as it does not involve a regulated activity.
Linde asked if the lots which have no wetlands on them were clear cut, what would be the amount of water that would come off and would the system that is designed adequately handle the additional water, and would there still be no impact on the wetland. Smith stated the applicant is demonstrating what can be built and is not speculating on changes to what is proposed. He further stated all of these changes would require further permitting processes that would be reviewed by staff.
Knapp stated at the time of construction the applicant would have to obtain a Zoning Compliance Permit which would be reviewed, and at that time, a determination would be made if this applicant needs to seek approval from the Inland/Wetlands Commission. He further stated that Attorney Smith is correct, if based on what is before the commission today has no impact being shown , that the commission’s jurisdiction does not cover possible speculation in the future.
Linde stated it is harder for him to ascertain impact when it is unclear whether 200 square feet are being clear or 200 acres are being cleared. Knapp stated if an applicant came in and proposed to clear their entire lot and it would cause a wetland impact the commission would be in a position to deny the application at that time. Knapp stated an application has to come to the Zoning Office at the time of construction.
Sharp stated that a lawn has more runoff than a forest. She further stated this proposal does not involve huge acreage. Bechtel noted that there are two vernal pools on the site. Sharp stated that everything is draining away from the vernal pools. Sharp stated that more forest habitat would be better but she could not speculate on what would happen depending on how much area was cleared on each individual lot. She stated the proposal before the commission does not show a lot of clearing.
O’Donnell asked Attorney Knapp if there was away to mandate the prospective buyers to meet with town officials if the clearing limits are exceeded. Knapp stated if something is proposed on the individual sites that demonstrate wetlands impact then they would have to come back. Knapp stated the person who has threshold for this commission would be Ann Brown. Knapp stated she would review the application and make that determination.
McCulloch asked if the commission could specify that the lots with wetlands located on them have to come back before the commission prior to construction. Knapp indicated that would be appropriate.
Brown stated it is her belief that the applicant is hoping, with this commission’s approval, that you would actually be approving the development plans for all of the lots for which there were potential wetlands impact and it is her belief that a note is going to be put on the plan that if there are substantial changes to the layout and development plans on those lots than an application would be filed with this commission. Brown stated she felt that the commission should retain a two-step process where the subdivision is approved and when construction is done on each lot the applicant appears before the
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commission. Knapp stated as long as what is on these maps gets done it is not coming back before this commission. He further stated they would only come back for a substantial change.
Bennett stated there is a note on the plan located on Drawing #5 – Note #5 that states “if the applicant intends to construct a proposed house, septic system and driveway within the clearing limits depicted hereon a wetland application must be submitted to the Town of Old Lyme for modification of the clearing limits adjacent to the upland review area on Lots 1, 4, 5 and 6.”
Smith stated to Sharp that there have been some minor modifications to the plan to incorporate the comments from Mr. Metcalf, the commission, citizens, conservation and conservation district. Smith noted that Mr. Metcalf indicated in his letter today that the revised plans and drainage summary have satisfactorily addressed his August 2, 2008 comments. Smith also noted that Wendy Goodfriend indicated in her letter today that the comments and recommendations in her previous two letters have been addressed either in the plans revised through August 22, 2008 or in the August 22, 2008 response letter.
Smith asked Sharp if she had an opportunity to review the revisions that have been submitted to date. Sharp indicated she had. Smith asked, in her opinion, do the regulated activities associated with the conduct in those plans result in adverse impact to a wetland or watercourse. Sharp stated they do not. Smith asked, in her opinion, do the revised plans and the regulated activities associated comply with the statutory factors for consideration as provided in 22a-41 of the CGS. Sharp stated they did. Smith ask if it was her opinion that the regulated activities associated with the proposed subdivision comply with the regulatory factors for consideration and the standards set forth in the wetlands regulations of the commission in Old Lyme. Sharpe answered yes.
Smith provided the commission with a narrative of the notes on the plan.
Bechtel asked if the final plans are dated August 20, 2008. The applicant indicated that was correct. Bechtel asked if these were the plans that Mr. Metcalf reviewed. The applicant stated that Mr. Metcalf received these plans on Friday. Bechtel stated that Mr. Metcalf letter to the commission dated today discussed plans dated through August 5, 2008. Therefore, she was wondering if there was anything from Mr. Metcalf indicating he has reviewed plans revised through August 20, 2008. Smith stated he would have no objection modifying the plan to incorporate any additional comments.
Bechtel asked counsel for advice on whether to close the public hearing at this time because she still needs to review the letter from Bennett dated August 22, 2008 and also would like to be sure that Mr. Metcalf did indeed review the final plans submitted. Knapp stated if the concern is Mr. Metcalf comments, the hearing can be closed because he is able to provide additional comments after the hearing is closed. Knapp stated if the concern is that review of the plans will produce additional questions that you would like to ask the applicant then the hearing should be held open. Knapp stated he feels the applicant has gone through what is different from what was seen prior and has attempted to provide explanations so the commission does not need to keep the hearing open. Knapp further stated it is
the
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commission’s choice if they feel they need additional time to review the materials received tonight and would like to be able to ask additional questions then again the hearing should be held open.
Cronin suggested the commission write a letter to the Planning Commission expressing their concern for the vernal pools on the site and requesting the importance of protecting these areas.
O’Donnell asked about the construction sequencing as mentioned in Wendy Goodfriend’s letter. Marty Smith stated that is a question of timing. He suggested that a solution might be to clear in the areas identified and not stump. Smith stated sometimes it is beneficial for the prospective buyer to have the area where the house is to be located cleared so they can see the location but it does not have to be stumped until final construction. He further stated he would be happy to comply with that condition.
Attorney Smith stated that they respectfully submit that the proposed subdivision does not result in any regulated activities that would have an adverse impact on the wetlands or watercourse as indicated by Ms. Sharp and request on behalf of Mr. Smith and his partners that you approve the application. Smith thanked the commission for their time.
Janet Bechtel made a motion to close the public hearing. Robb Linde seconded the motion. The motion passed unanimously.
OLD BUSINESS
08-08 Old Lyme Hills – Woods of Old Lyme – Old Stagecoach Road – 38 Lot Subdivision
Hussein Mushin stated that a site walk was planned for tomorrow morning with Ann Brown, Tom Metcalf and the applicant’s engineer. He stated that meeting was supposed to take place prior to tonight but that was not able to happen. Mushin stated he has received comments from both Wendy Goodfriend and Ann Brown. He further noted that his engineer has responded to those comments but the commission has not received copies of those comments. Bechtel stated she has concerns about the drainage and would be more comfortable when she receives comments from Mr. Metcalf with regard to the proposed drainage for the project.
The commission agreed to set a site walk for Saturday, September 13, 2008 at 8:30 a.m.
08-07 Bedri Babasuli- 20 Grassy Hill Road – Proposed Driveway Construction to provide off road parking and septic system repair.
The application has been formally withdrawn.
FMTM – Show Cause Hearing
Bechtel reported that Metcalf has visited the site a number of times and will continue to follow up and monitor the progress. Brown indicated the applicant will be back with an as-built once it is done
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properly. The commission agreed that Metcalf could authorize the paving, but the as-built needs to be submitted prior to beginning of Phase II. Brown also noted the applicant plans to complete Phase I within the next ten days and then move onto Phase II. Bechtel stated it was her understanding that Phase II would be stabilized immediately. Bechtel stated the information she received from Metcalf was that they were in compliance.
OTHER BUSINESS
REGULATION REWRITE
Bechtel asked if the regulations had been forwarded to Attorney Branse for his review. Brown indicated she has not yet forwarded the regulations to Attorney Branse.
LORDS WOODS SUBDIVISION ENFORCEMENT
Bechtel stated she asked Ann Brown about using the IWWC’s E & S Bond to get the completion of a level spreader fixed and that Brown’s recommendation from legal counsel was that we not, unless absolutely necessary. Attorney Knapp stated if the commission pulls the bond for the level spreader it becomes the town’s obligation to hire someone to do it and make sure it is done correctly. He further stated that essentially the town is going to buy into the responsibility of the spreader; therefore he suggested that the bond only be pulled and do this that it is perfectly clear that it is the only way that it is going to get done. Knapp stated that generally putting the town on the hook for improvements of this source not a great idea.
He also noted that generally the reason for E & S bonds is if there is an erosion problem someone can be sent into the site quickly to stop the erosion problem and make sure they get paid. He noted that level spreaders on private properties are generally not handled by these types of bonds. He further stated you can do it, but that it only is done as a final resort.
Bechtel asked Knapp if he would then contact Attorney Block to come up with a time when he will have Allen Hull complete this work. Knapp stated he would be in contact with Attorney Block.
Discussion ensued about the fact that the level spreader was located in the open space on town property and would ultimately be the town’s responsibility. Knapp again stated the town would be responsible after the level spreader was installed and functioning properly. Knapp suggested the commission give the developer an opportunity to fix the situation prior to using town resources to complete the job. He also noted if the bond is pulled for this specific purpose it will not be there for future erosion problems if needed.
Robb Linde (Intervener)
Mr. Linde stated that the developer is clearly trying to sell the property and therefore he asked if the town can market that property under a Cease & Desist. Knapp stated anyone purchasing that property
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will have a difficult time getting mortgage financing under a Cease & Desist. Linde stated he would suggest that the Cease & Desist be recorded on the deed since this commission has not had any success getting the developer to complete the work on this project.
Bechtel agreed that the Cease & Desist Order should also be recorded. Knapp stated if the commission issues a Cease & Desist and the applicant is coming into a hearing the commission is probably wise to wait until after the hearing before recording it on the land records. Knapp stated it would be his recommendation that no Cease & Desists are recorded until after the hearing.
Bechtel stated that the IWWC was well beyond all of that process and therefore asked if a motion was needed to file the Cease & Desist for the Lords Woods Subdivision on the land records. Knapp stated a motion was not necessary. Ann Brown will follow-up with the recording of the Cease & Desist Order on the land records.
MISCELLANEOUS INFORMATION
McCulloch asked Brown is she would visit a site adjacent to the Black Hall Pond where the property owner has constructed some sort of structure at the lake’s edge.
McCulloch also asked if a seeded mat could be placed on the property located at 394 Shore Road in the Point O’ Woods beach area to prevent further erosion.
SHORT HILLS SUBDIVISION DISCUSSION
Robb Linde asked why the commission would use the resources of the town attorney to draft a denial motion when the testimony has indicated there is no inevitable impact on the wetlands. Bechtel asked if everyone feels that way. If so, than other than some conditions and additional details it would only be necessary to draft a motion of approval.
O’Donnell asked if the denial would be a defendable action in court. Brown stated what ever action the commission takes Attorney Knapp will defend.
O’Donnell asked the commission if they would consider adding the note on the plans to the lots that were not included. Bechtel stated the applicant has made it clear that they do not want to include them into those restrictions and Attorney Smith argued long about the fact that if something happens and you feel it is going to have impact then indeed you are able to get jurisdiction over it but they do not want it included as part of the plan. Bechtel stated this may be something to condition. O’Donnell stated she thinks it’s hard for the commission or the enforcement office to have notice of any deviation from the plan and part of the applicant’s submission is that this plan is supposedly protecting the vernal pools and as such relies on a certain area or clearing limits.
Brown stated that in the development process she would be aware of what their proposal was unless they cleared without coming to the office first. Brown stated when they construct a house she has a survey plan showing where the disturbance will be so if there is a substantial change on those lots that have the wetlands proximity it would be familiar.
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Brown noted on the others she would not be inclined to think there would be a huge impact from clearing the site.
Bechtel stated she did not think it was the intent of the applicant to clear cut any of the lots. She further stated it is not the sort of place this happens and the engineer basically said it is not going to affect the drainage because of the topography.
Linde stated that the existing rock wall precluded the critters from going in the easterly direction and therefore their habitat would be more than alright.
O’Donnell asked if the construction sequence resolved. Brown stated the applicant agreed to the condition that until they are ready to construct they would not stump. O’Donnell asked if that would be put in writing.
The commission agreed to have counsel draft the motion.
Respectfully submitted,
Kim Groves
Land Use Administrator
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