OLD LYME INLAND WETLANDS AND WATERCOURSES COMMISSION
PUBLIC HEARING AND REGULAR MEETING
TUESDAY, MAY 26, 2009
PRESENT WERE: Chairman Janet Bechtel, Vice Chair Robb Linde, Skip DiCamillo, Mike Moran, Don Willis, Sabine O’Donnell, Evan Griswold and Dave McCulloch.
MINUTES OF PREVIOUS MEETING DATED APRIL 28, 2009
Dave McCulloch made a motion to approve the minutes. Skip DiCamillo seconded the motion. The motion passed unanimously.
MINUTES OF SITE WALK MEETING DATED APRIL 16, 2009
Evan Griswold made a motion to approve the minutes. Robb Linde seconded the motion. The motion passed unanimously.
NEW BUSINESS
09-16 GARY TUFANO – 19 5TH AVENUE – TOP DRESS PORTIONS OF THE YARD AND RESEED.
Brown reported that this application was a result of a complaint she received in the office.
She also noted when she contacted Mr. Tufano he immediately submitted an application to the commission. The commission reviewed the application and agreed to set a site walk for Thursday, June 18, 2009 at 5:30 p.m. Brown agreed to notify the applicant of the date.
09-17 WILLIAM KADLEC – 1 MILL LANE – REMOVAL OF TREES AND LAWN MAINTENANCE
Bechtel noted this application was also in response to a complaint received by the commission. Brown noted that this applicant also immediately came into the office and submitted an application.
Brown submitted a copy of the tax assessor’s map that delineated the location of the property. The commission reviewed the photographs submitted by the applicant.
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Bechtel asked if the work has already been done on the property. Brown stated the trees have been cut, but the stumps still remain and the applicant would like to grind the stumps and also do some repair work to the lawn. Brown also stated she felt this work might fall into the category of ‘permitted by right’ yard maintenance. She also noted that there was a very small area of dry ground on the lot.
Bechtel stated that the application states that the property owner has removed four trees on two slopes that were threatening the cottage. The applicant stated that this removal was done in the month of December when the ground was frozen. He also indicated in his application that he would like to grind down the remaining stumps and he is also working with a landscaper to rework the slope.
Skip DiCamillo stated that the contractor that removed the trees also removed brush in the regulated area as well as drove across the stream with his truck.
Mr. Kadlec stated the property is approximately 2.7 acres and of that 1/10 of the property is on dry land. He noted he has lived at this location for 23 years and would never do anything at the site that would endanger the wetlands.
The commission agreed to set a site walk for Thursday, June 18, 2009 at 6:30 p.m.
09-18 – WHIPPLEBOMB, LLC – 308 FERRY ROAD – MODIFICATION TO AN EXISTING PERMIT TO BUILD RETAINING WALL AND PATIO AROUND POOL
Bechtel asked the applicant to indicate the exact location of the property. He noted it was the third house in on the left side on Ferry Road.
The applicant reviewed a landscape drawing with the commission. He oriented the commission to the plan. He noted there is an existing pool in the rear of the property that had a pressure-treated deck surrounding it which has fallen apart and the proposal is to replace it with a block patio. He stated there is a slight slope on the property towards the wetlands and therefore they would need to construct a 42” retaining wall and about 60 yards of fill would be necessary to accomplish the project. Bechtel asked how the fill would be brought into the sight. The applicant noted the direction on the plan. O’Donnell asked the distance to the wetlands. He stated it was approximately 75 feet.
Linde asked how the retaining wall would be constructed. The applicant indicated it would be made of block. Willis asked if footings would be required. The applicant indicated that was correct. Bechtel asked if all the equipment could be brought in on the far side (farthest from the wetlands). The applicant indicated that was possible. Griswold asked if there was any drainage proposed in the wall. The applicant stated he would have to ask the designer about the specifics for the construction of the wall.
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Bechtel asked the applicant if the original approval stipulated that the area that was previously cleared was to be allowed to re-vegetate. The applicant indicated that was correct and it also included a rough buffer. O’Donnell stated she would like to see the actual wetlands shown on the plan due to the proximity. The applicant indicated there is currently silt fencing up on the site.
The commission agreed to table any action until next month and to review the file from the prior approval before the next meeting. The applicant also asked for permission to repair the pool itself because it has bowed out on the sides. The commission indicated that was fine. Linde asked the applicant to have the landscaper describe exactly what drainage is proposed and the actual construction of the wall.
PUBLIC HEARING
JOSEPH AND TAMARA MCARAW – 23 TALCOTT FARM ROAD – CEASE AND DESIST ORDER – CLEARING IN THE REGULATED AREA IN VIOLATION OF PERMIT 07-09
Ann Brown reported that at the end of last week she was left a phone message which she received today from an attorney who has been contacted by the McAraw’s. She further stated she felt she had a productive conversation with that attorney, however he was unable to attend tonight’s meeting due to a conflict and requested the hearing be continued until next month. Brown noted that she explained to him that what the commission wanted was a restoration plan. She also discussed with the attorney that the Talcott Farm Association also had an interest in the plan. Brown reported that the attorney had not seen a copy of the easement document for the Talcott Farm Association, therefore he was not aware of the circumstances of the permit. Brown stated it was his intention to submit a
restoration plan to her prior to next month’s meeting.
Bechtel asked Brown if in her conversation with the attorney he was made aware of the fact that this violation has been ongoing since February and a plan was requested by the 5/26 commission meeting. Brown stated they did not talk dates specifically but she did indicate the hearing had been going on for some months. Bechtel asked Brown if she explained to the attorney that it was the intent to get a resolution that would not only satisfy this commission but also the Talcott Farm Association. Brown stated absolutely he was aware of this issue.
Bechtel requested that Brown contact the attorney to obtain progress reports during the month in an effort not to loose another month. She further stated if the commission is not going to be getting a restoration plan by next month then she would like some input as to what the next step will be for this commission. She stated she felt the hearing had dragged on long enough and was concerned that this was an exposed hillside and we are approaching the time of year where there are heavy rain events and there is not even silt
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fencing in place. Brown stated she discussed this concern very specifically indicating the seal on the surface had been broken by the activities and the site needed to be stabilized.
Bechtel asked the commission if they were comfortable waiting a month or were there items that the commission would like to request while the restoration plan is being put together. Griswold stated he felt there should be some effort made to stabilize the situation or at least contain it. Brown stated she would discuss the erosion concerns with the attorney. DiCamillo suggested a timeframe be set for this to be completed. DiCamillo suggested the silt fencing be installed within the next two weeks. Brown asked the commission what action would be taken if that failed to happen? DiCamillo stated he would expect the applicant would comply with this recommendation since this situation has gone beyond the normal as a result of their inability to be present at the meetings.
Bechtel stated she did not feel the commission had seen a lot of cooperation from the applicant and therefore she did not feel the commission would see much more cooperation other than what they are legally told they should be doing by their attorney.
Bechtel also offered to contact the attorney if that would be helpful. O’Donnell asked if the commission could set fines on a daily basis as part of the enforcement. Bechtel stated that was possible.
McCulloch reported that he felt the brush dumped on the lot was probably done at the time the home was constructed and therefore the builder might have some liability as well as Jason Wilcox. Brown stated she did not recall things being dumped in the wetland at the time the house was constructed. Bechtel stated that the neighbor testified on the record that he did not feel there had been clearing violations when the house was built but he felt the clearing violations happened after the house was up and in place. McCulloch again asked who the commission thought dumped all the stuff down in the wetlands and who chopped off the top of the trees that Jason Wilcox indicated where chopped previously. Brown stated she did not have an explanation for something she did not see, but she also noted she
was on the site several times prior to construction and did not observe any dumping.
Brown stated the Cease and Desist order requested the McAraw’s to stop clearing and so far they have complied. Brown also noted she has written a modification to the Cease and Desist that she planned on giving them tonight; however since they did not attend it will be mailed.
Linde asked the commission if they wanted to consider holding a Special Meeting to expedite the situation if the plan is ready prior to the next meeting. The commission agreed to set a Special Meeting on Tuesday, June 9th, 2009 at 7:30 p.m.
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The commission discussed some of the specifications they would like to see on the plan. Bechtel noted the planting guidelines are outlined in the easement association documents which will be forwarded to their attorney. Brown also noted that she suggested more ground cover (shrubs) to fill in since there would not be a canopy established immediately. DiCamillo asked if quantity would be specified. Bechtel stated she would first like to see a plan.
QUESTONS FROM THE AUDIENCE:
STANLEY KOLBER- 25 TALCOTT FARM ROAD
Mr. Kolber stated that last weekend he observed top soil being brought into the site. He stated it was at least a couple of truck loads and equipment was on the site moving it around. Kolber also noted he was not aware of the location the soil was spread.
Bechtel thanked Mr. Kolber for the information and further indicated that this activity would create a violation of the Cease and Desist Order. Brown will inform the attorney that his client is in violation of a Cease and Desist Order.
MARIO BERTOLINI – PRESIDENT OF THE TALCOTT FARM ASSOCIATION
Mr. Bertolini asked the commission if they would provide the association with a copy of the plan when one is received. Bechtel stated that is definitely the intent of this commission that the plan be reviewed with the Association and it would satisfy both the Inland Wetlands and Watercourses Commission and the Association.
Linde stated that at the last meeting he stated if the McAraw’s chose not to share their plan with Talcott Farm Association there was a possibility that they would submit a plan that was approved by this commission and the Association might not approve it and therefore the plan would have to be revised and the applicant would have to come back before this commission for a second time.
Bechtel stated this item will be continued until Tuesday, June 9th, 2009 at 7:30.
OLD BUSINESS
09-09 DAVID AND MARY EKLUND – 312 FERRY ROAD – 9 LOT SUBDIVISION. NO ACTIVITY IS PROPOSED WITHIN THE WETLAND OR THE 100’ REGULATED AREA
Matthew White from Angus McDonald and Gary Sharpe and Associates was present to continue the discussion on this application. Mr. White stated at the last meeting the commission had some concerns about the two proposed rear lots and as a result of those
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discussions he noted he had reconfigured the lots which allowed him to provide at least a 20 ft setback from the regulated area for the schematic house locations. He also noted he rearranged the grading so there will be little grading associated with the construction. He noted both homes have a footprint of approximately 1,800 sq. ft.
DiCamillo asked the size of the two proposed rear lots. White indicated one lot was 1.28 acres and the other was 1.36 acres.
Bechtel asked White if he had any further correspondence with the DEP with regard to them insisting it was tidal wetlands. White stated he did not have any written communication but he did have a conversation with Marcy Balint. He further noted that she did not have any further information than he had suggesting this area was tidal other than it shows up on the old DEP CAM mapping. White stated he believes it is an inland wetland and he will be writing a letter in response back to the DEP. He further stated all of the research on the property indicates that the water level in the pond is just above elevation 5 and in the one frequency tidal flood in this area is 4.1 so there is not anyway this could be connected to the Connecticut River or the water would drain out and it would be lower.
Griswold asked if there was any fluctuation from tidal pressure. White stated there is nothing that they have been able to observe.
Brown asked what the soil scientist said about the site. White stated that Richard Snarski stated it was inland wetlands and when he went around and did all the flagging he looked for any kind of connection. Brown asked Mr. White if Mr. Snarski could write a letter to both the Planning Commission and the Inland Wetlands Commission.
Bechtel stated that it is noted on the plan that Mr. Snarski has indicated that this is an inland wetland but she indicated she would like to have those opinions verified before any action is taken on the application.
White stated Richard Snarksi’s signature is on the plan indicating it is an inland wetland, secondly there is an indication of the wetland line being up above elevation 8, so even if the pond is tidal there are inland wetlands around the fringe of the pond, therefore to delay another meeting to find out it might be tidal, this commission would not have any jurisdiction. White stated he would prefer to bring this plan to a conclusion with the plans as they are submitted stating that this is an inland wetland.
Linde asked if the commission did approve this application does it in anyway infringe upon the DEP’ ability to regulate that particular project if they choose to do so. Brown stated they would be separate approvals. Linde stated unless the DEP asked the commission to specifically not do something then he did not feel there was any harm to the DEP by acting on the application tonight. Brown stated she agreed because if there
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was an approval and it was determined that this commission had no jurisdiction then the ruling wouldn’t mean anything.
Bechtel stated she feels the proposed subdivision is too dense to sufficiently protect the wetland resource. She further stated she understood the schematic house locations were reconfigured but the whole burden of requiring adherence to the schematic plans falls to the commission; she reiterated her belief that this particular subdivision as proposed was too dense and there were feasible and prudent alternatives. Therefore she would vote to deny the application.
White stated the commission has regulations and they have a 100 ft. regulated area. He noted this entire subdivision located on 18 acres has no regulated activities proposed whatsoever, so he felt it would be unusual for a wetlands commission to take that position on such an application.
Linde noted that the commission does have the ability to regulate outside the 100 ft regulated zone if the commission feels that activity puts the wetland at danger. Linde stated the plan presented is reasonable; however his concern is when the lots are purchased the owner might propose something significantly different than what was put forth in the subdivision plan. He further asked what the commission’s ability was to holding an applicant to building something conceptually similar to the footprint that is shown. Brown stated the commission has absolute jurisdiction on what is put on the individual sites. Brown suggested the commission place a condition on the approval requiring every lot to come back before the commission for its specific site development.
Linde stated he also agrees the proposal is too dense, but he also indicated he would have a difficult time denying this application because the applicant has done a good job of keeping everything out of the 100 ft. regulated area and they have also revised the plan to show reasonable area to be able to work around it and to provide living space around the home.
Don Willis stated he felt that 20 ft. setback was more than adequate for machinery to work around.
Bechtel asked if the commission had stipulated that there will be no activity beyond the 100 ft. review zone. White stated there is a limit of clearing depicted on the plan in addition to a note that states “that any alterations to the proposed site development plan will require approval from the Old Lyme Inland Wetlands Commission on all sheets. Bechtel asked if the plan indicated the homes were schematic. White stated they are all labeled as schematic homes. Bechtel asked about changing the two rear lots to be actual and no longer schematic. White stated he didn’t feel that could be done at the time of subdivision approval. White stated dimensions have been shown for those two homes, along with deck locations, and clearing limits.
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Griswold expressed concern that there is also the possibility a purchaser might come before the commission with a house proposal that rotates the house ninety degrees for solar gain access and still had it twenty feet from the 100’ area and therefore would not want to box the commission in to specific locations that might be better. Discussion ensued.
Linde stated should the commission approve the application he would like it on the record that the commission is only approving this subdivision because they have been able to keep the activity outside the regulated area and because the dwellings will be no closer than 20 ft to the regulated area.
O’Donnell stated she had a chance to walk the entire property and she especially looked at those two lots and her opinion of this proposed subdivision plan now with the conditions discussed is acceptable to her because of the slope and also the fact that across the pond is a very unsightly DEP structure which will make a vegetative buffer desirable to any purchaser of the property in order to screen the building. She also noted that Mr. White made an effort to address the concerns of the commission raised at the last meeting.
McCulloch asked that the proposed clearing limit be changed to indicate there could be no activity in that area.
Robb Linde made a motion to approve the application with the following conditions:
1. A note is placed on the plan indicating that all individual home sites must come back before the commission prior to clearing.
- On Lots 7 and 8 that this commission feels strongly that the limits of
clearing as depicted on the plan should not be made any larger than what is shown on the plan. That the dwelling at no point have less than 20 ft from the 100’ regulated
area and to reiterate the delicate nature of this wetland requires that the 100’ regulated area remains undisturbed both in the subdivision and future development.
Don Willis seconded the motion. The motion passed. Bechtel opposed.
ENFORCEMENT REPORT
FMTM
Bechtel stated that Ann Brown sent out a letter to Frank Martone requesting that he be in touch with this commission as a result of Tom Metcalf’s letter dated May 7, 2009 stating that he had visited the site and felt nothing had been done and the area
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needed to be stabilized in Phase II. Bechtel stated that Mr. Martone has fifteen days to respond to Brown’s letter otherwise bond money will be used to stabilize the site.
The commission decided to add FMTM as an agenda item to their June 9th, 2009 Special Meeting.
LORDS WOODS
Bechtel stated that nothing has been done at the site but she is aware through correspondence between the Planning Commission’s Counsel and Attorney Block, (attorney for the applicant) they are trying to resolve the outstanding issues at the site.
OTHER BUSINESS
PETITION OF CAROL VANPATTEN FOR DISCUSSION
Bechtel recused herself from this discussion but prior to doing so provided the commission with some background information. She noted that Mrs. VanPatten contacted her and stated that there has been a violation in the wetland on property that the Estate owns of her deceased husband she would like the commission to walk the site. Mrs. VanPatten has a petition and Bechtel told her that petitions are usually the
result of an application and the commission does not have any application before them.
Robb Linde chaired this agenda item.
Carol Scofied VanPatten, stated that her husband made an agreement with Mr. Battalino with one acre of property seventeen years ago. VanPatten stated the contract was specific. She stated Mr. VanPatten dug the pond in 1964 and it was commercially landscaped and Mr. Battalino needed some frontage for his home.
VanPatten stated the wetlands support her reservoir dug pond and well for the 18th century home. VanPatten discussed the status of the ownership of the property within the court system.
VanPatten stated there has been cutting on both sides of the road and there are wetlands on both sides. VanPatten stated that Mr. Battalino is well aware that there is no cutting within 100 ft of the wetlands.
VanPatten asked the commission to visit the site.
Linde sought clarification by asking if Mrs. VanPatten was stating that she owns the property that was violated but leases it to Mr. Battalino. Linde asked if a permit was
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pulled to do the work. VanPatten stated they filed an application but it was withdrawn prior to the meeting.
Linde stated what has been done in the past when there has been clearing within a wetland without a permit and the owner has been amendable the commission has allowed the owners of that property to submit a wetlands application to us. He stated the commission then visits the property and reviews plantings for the site in an effort to create a restoration plan. Linde also noted when the owner has not been amendable, the commission has issued violations. Linde further stated it was not exactly clear to him as to who owns what and that is not the jurisdiction of this commission to consider that, but if the owner of the property where the wetland existed and the clearing happened were to submit a permit to the commission it would be reviewed as any other application.
O’Donnell stated legally she was very confused and it was unclear to her as to who the violator is and what his connection is to the property. O’Donnell stated it was her understanding that Mrs. VanPatten’s former husbands’ estate owns the property and part of that property was leased to the violator so this violator is a tenant. VanPatten stated is tenancy is over but there was a mistake in the court order that it was to be conveyed to Mr. Battalino.
Linde stated his only concern is that the commission has the right to cross the property.
Brown noted for the record that she had spoken with Mr. Battalino and he is happy to have the commission visit the site. Mrs. VanPatten agreed to submit an application prior to the site walk.
The commission agreed to set a site walk for Thursday, June 18th, 2009 at 5:45 p.m,
at 162 Mile Creek Road.
REGULATION REWRITE
Bechtel suggested the commission hold a public hearing in August to approve
the regulations which means that they need to be completed by June in order to
send out the referrals to the appropriate agencies in a timely manner.
Respectfully submitted,
Kim Groves
Land Use Administrator
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