OLD LYME INLAND WETLANDS AND WATERCOURSES COMMISSION
SPECIAL MEETING
TUESDAY, JUNE 9TH AT 7:30 P.M.
PRESENT WERE: Janet Bechtel, Robb Linde, Skip DiCamillo, Sabine O’Donnell, and Dave McCulloch.
CONTINUATION – 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.
Bechtel stated that at the last meeting held on the 26th of May the commission requested that the applicant come back to this commission with a restoration plan.
Attorney Sean Donlan was present to represent the McAraw’s. Attorney Donlan stated he had visited the site but he was unclear as to which areas fell under the wetlands jurisdiction. He also asked for clarification as to which items fell under the purview of the Talcott Farm Association versus this commission.
Brown stated that the plan that was in front of Attorney Donlan was the plan that was approved by this commission. Brown stated the wetlands commission in every application claims the 100 ft area along the inland wetland. Donlan asked Brown if she could point out those areas on the plan. Bechtel submitted a color coded plan that delineated the areas. Bechtel explained that the color green is the wetland boundary marker, the yellow is the 100 ft review area, the two yellow lines indicate the 100 ft. setback and the orange is the limit of clearing that was approved and noted nothing beyond that orange limit of clearing was to be cleared. She also noted that she thought the pink indicated the A & B preservation areas of the Talcott Farm Association.
Donlan asked Attorney Bennet, agent for the Talcott Farm Association, if he was claiming that the restrictive covenants are for A & B or does it include the wetland areas as well. Bennett stated the covenants are in oversight of the whole subdivision.
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Donlan asked Attorney Bennett if he was present this evening to work on an agreement with the Talcott Farm Asssociation or was this meeting only to address the issues raised by the Inland Wetlands Commission. Bennett stated it was his intent to be able to resolve all the issues with one plan.
Donlan submitted a plan that was created after the April meeting. He noted that the landscape planting would be done by Saddle Hill Landscaping and the design was done by a company located in Newington, CT. Brown asked if the plan was drawn to scale and if so was that scale noted on the drawing. Donlan indicated it was not. The commission reviewed the plan. Brown stated that there were no trees shown on the landscape plan. Donlan indicated that was correct. Mrs. McAraw stated that she had been given a Blue Book by the commission at their last meeting to use as a guide in their design process.
Bechtel stated the Blue Book that was given to Ms. McAraw is simply a landscape suggestion booklet with recommended plantings that was put together by the Old Lyme Conservation Commission along with the Old Lyme Inland Wetlands and Watercourses Commission. Bechtel stated she sincerely hoped that this plan would at least and foremost address the clearing that was done towards the wetlands side not just specifically the area that is due east off the front of the house. Bechtel stated if we review the green color area on the plan that marks the wetlands flags, a considerable amount of clearing was also done in that area that included large caliper trees. Donlan reviewed the areas of the site with the commission. McAraw stated she did not feel any trees were taken down in the area stated by Bechtel. Bechtel stated that this commission walked the site previously and is willing to walk it again and at that time a count could be done on the site. Discussion ensued about the clearing
in the various areas on the plan.
Donlan stated that his clients have indicated that they were not the owners of the property when a lot of the trees were taken down. Donlan then asked what the IWWC would determine their responsibility to be for taking over a property that had trees that had already been taken down. Bechtel stated when this commission walked the property when the McAraw’s submitted their original permit application to build the house, the site plan that is color coded is indeed the site plan that was approved. Bechtel stated when the commission walked the site, there were not, to the best of her recollection, only two dangerous falling trees and the commission was very specific that the orange line was indeed the limit of clearing and the meeting minutes that are on file when this permit was granted asked the
applicant’s representative if the required construction work to build this home could be accomplished within the limits of clearing. Bechtel stated the commission was told it would be tight but it could be done and therefore no clearing was to take place beyond that orange line and any activity that was to take place beyond that line was to come back before this commission. Bechtel further noted that the McAraw’s
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owned the property at that point in time which meant that any dead or dying or dangerous trees required the McAraw’s coming back before this commission for a permit to take those trees down if they were within the regulated area. She further stated that their easement documentation which the commission reviewed before the permit was granted, protected other sections of that property and also dove tailed with our regulations that they need to go back before their own Talcott Farm Association to get permission to remove any large canopy trees. She noted it was any clearing outside the silt fencing that needed to be brought before this commission. DiCamillo stated it wasn’t just trees it was any clearing. Bechtel stated the commission wanted that buffer to protect the water resources
around the house.
Attorney Donlan stated he could acknowledge that trees were taken down without coming back to the Inland Wetlands Commission. He stated for example if tree #7 was a dead or dying tree that was removed without permission what would the commission require at that point? Donlan asked if the commission would require a dead tree to be replaced just because there was activity without a permit or would the commission have just granted approval for that tree anyway? Donlan stated he wanted to know exactly what trees the Inland/Wetlands Commission believes should not have been taken down. Bechtel stated all of the clearing that was done on the property is clearing that shouldn’t have happened; because had a permit come to the commission, a site walk would have been scheduled and the commission would
had visited the site and looked at the trees and made a determination. Bechtel stated that also in order to get equipment into the site there would have to have been trespassing on the 100 ft area that the commission had asked to have no trespassing take place. Bechtel stated that the mitigation process will require silt fencing and buffer plantings installed once the tree is removed, and so on and the commission did not have that option. Therefore there is now a lot that is cleared without any of the buffer that was originally in place.
Bechtel stated that to nit-pick over how many trees and which trees were removed would not be very productive. The goal is to reach a productive solution. There were large mature trees on that site that were taken down which provided a canopy that created shade for a wetland environment and that canopy needs to be restored, along with low level shrubbier buffer plants. The plan that has been presented here tonight does not begin to address those issues.
Donlan stated the person who removed the trees had come to this commission and given an explanation on every tree and the reasons for removal. Donlan asked if the IWWC determined that person was incorrect? McCulloch stated it doesn’t matter if he was or not; if he took anything down he should have come back before the commission. Bechtel stated it is not the commission’s job to question his veracity. Donlan stated if there is a dead tree and someone did not come back to the commission would you require them to replace that dead tree because they didn’t come back for a permit? Bechtel stated
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depending on what had been done to the canopy and what sort of wetland environment was now in jeopardy would determine what would be required. Bechtel stated in this case, a large canopy has been removed along with heavy shrubby scrubby underbrush which needs to be restored.
Donlan stated when he walked the site the underbrush appeared to be exactly the same on the site. Bechtel stated the underbrush had extended all the way up to the orange line and all of that has been taken away and there are only wood chips. Donlan stated there are leaves and brushy ground and he doesn’t know how anything could have grown there. McAraw pointed out the areas on the plan that she felt there were wood chips.
Stanley Kolber – Neighbor – 25 Talcott Farm Road
Kolber addressed the commission focusing on the marsh area which is the border between the two properties. Kolber stated as he indicated at a prior hearing there had been cutting. He also stated for the record that he does not represent anybody and is in attendance for himself. He stated that Bob Giannotti, who is present, built this house and when he finished building this house in his best re-collection, Mr. Giannotti came around with some kind of equipment and removed the cut from the site. Kolber stated therefore, when he returned and observed what had happened and to his best recollection the stuff that was piled along the side of the property was newly piled and that some of the stuff that was piled still had green needles on it and therefore was not dead stuff.
O’Donnell asked if this was from the recent clearing? Kolber stated his best recollection was that there was nothing there when the house was finished. Kolber stated he saw this for the first time after the events of this cutting took place. McAraw stated they did have a tree down on the site and a neighbor came and cut up the pieces and removed it from the site.
Kolber stated when the house was built, Bob Giannotti had a crew come to the site and remove some stuff along the swale. Therefore Kolber stated when the construction was done there was nothing on the swale.
DiCamillo stated when he walked the site he recalled a very heavily wooded area with a lot of trees and underbrush in the wetland/bufferzone area.
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Attorney Bennett stated in an effort to move forward that he suggests that all the trees be mapped over a certain caliper on the site (including the dead ones) so that post development everyone would know where everything was and the commission could approve the plan. Bennett suggested that there be a requirement for a qualified arborist to visit the site and simply measure the stumps, identify the species, locate and map them and then a restoration plan could be discussed and reviewed that would make sense for that area.
Bennett also noted that the current plan being presented does not begin to satisfy the needs of the association.
Donlan acknowledged that the proper procedure wasn’t followed, however he didn’t think that either the IWWC nor the Association should ignore the fact that Mr. Wilcox attended the meeting and gave an explanation. Donlan stated it could be interpreted that what Mr. Bennett is saying is that it doesn’t matter what Mr. Wilcox said; let’s just go down there and see how many trees were removed and tell them they have to replace every single one. Donlan stated it was his understanding that Mr. Wilcox came to the commission with an explanation of why he removed those trees. Donlan suggested that the commission should do one of two things; either believe Mr. Wilcox’s testimony that certain trees were taken down properly or visit the site and say they disagree with Mr.Wilcox’s
explanation on this tree or that tree. Mr. Donlan suggested that this commission try to make a determination based on whether the McAraw’s had come in front of the commission and the commission had the opportunity to visit the site and approved some of the trees. He further stated it does sound punitive to say well I know half of these were dead but we are going to make you replace them anyway. Donlan stated this commission could spend time trying to recreate what the Inland Wetlands would have done had Mr. Wilcox come in prior to cutting down or just come up with an agreement of what they feel is an appropriate look or plantings in an effort to move forward.
Bechtel stated this has been going on since February and is a perfect example of clear cutting. She stated what this commission saw on the ground prior to approving the original application is so far different from what is currently on the ground and it appears there are different stories. However, the neighbor’s story is consistent with the Inland Wetlands Commissions recollection. Bechtel stated the commission has not asked Mr. Giannotti to tell us the condition of the property when he left the site after building the home. She further stated while she appreciated Jason Wilcox efforts she thought they were very self-serving and in order to do a restoration plan he would not be the person who would be consulted since he was the person who took down the trees and had a very vested
interest in protecting the work that he did. Therefore, unfortunately she
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stated to bring in a qualified arborist who does not have any vested interest in this particular application who could tell what was done on the ground because fresh cut stuff that was cut in January or February would be entirely different from dead stuff. She further stated this would establish a baseline for the commission.
Bechtel stated had the McAraw’s who have lived on the property and know exactly what they did attempted to come in with a planting restoration plan and not a landscape plan she would not be so annoyed. Therefore, she feels that it is necessary to have someone visit the site and properly map what has been taken down on this property and report back to the commission and it is not Jason Wilcox. Bechtel stated it is now June and the commission had hoped this property would be stabilized by April.
Tammy McAraw stated they were away for vacation in March. She further expressed her displeasure with someone being on property without her knowledge taking photos which she believes is trespassing.
O’Donnell asked if the commission had a tree specialist or arborist. Bechtel indicated it was Jason Wilcox. The commission discussed finding an alternative specialist due to the circumstances.
Donlan stated if the Inland Wetlands was dissatisfied with Jason Wilcox’s testimony the applicant had no knowledge of that up to this point. Bechtel stated she felt the meeting minutes indicated otherwise. Donlan stated he did not think it would be fair for an outside party to evaluate the site without any input from Mr. Wilcox. McCulloch asked Donlan if he was considering a tree for tree planting plan or a planting plan that restores the canopy. Donlan stated they would like to restore the canopy. McCulloch stated then the issue of explanation for each single tree would not be necessary. Donlan stated he agreed. Discussion ensued.
Bechtel noted however, it is not the job of the Inland Wetlands Commission to design a restoration plan which is why that is avoided. She further stated she did believe that somewhere in the meeting minutes she did state that every conceivable possibly appropriate species of tree, shrub, flower and ground cover is clearly outlined in the easement documentation for the conservation area. It has an entire list of every appropriate tree that Talcott Farm Association would allow and is appropriate for that particular site or a wetland condition.
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Donlan asked if the area between the yellow and green line was a particular area that the commission would like the landscape architect to concentrate on trees. Bechtel stated that is the upland review area. She further noted it should also include shrubby plantings because that whole hillside that starts to taper off is the buffer area for the ravine and the running stream.
Bechtel stated a plan that indicates what and how much was taken down is valid because it provides assistance in knowing what needs to go back as opposed to just looking at white space or even looking at Mr. Wilcox’s plan where he outlined more in coloring the condition of the tree.
Mr. Linde reviewed Mr. Wilcox plan with Mr. Donlan. He further stated as far as restoration of the canopy and what areas need to be covered the plan that this commission approved clearly shows where the limits of clearing exist and the tree line. He further stated this commission would expect a restoration to those limits of clearing on the plan. Linde stated this should eliminate any ambiguities in terms of what areas are covered by our finding of the violation of the permit and what be defined at least in his opinion as to what he would expect in the restoration. He would expect it to include the over layer, the tree layer as well as the under layer. Linde stated he does not have a clear recollection of their being mountain laurels in one space or another but perhaps there is some
photographic evidence that could show the area. O’Donnell stated she felt it would be fairly easily to recreate a restoration plan using the neighbors’ property as a guide because all those areas have the same buffer requirements the McAraw’s property and therefore one would find probably the same tree and shrub species that existed prior to the clearing.
O’Donnell asked Mr. Kolber for his recollection of the property. Kolber stated he did walk the lot at one point and he thought there was fairly heavy stuff. He stated there is a float that is used pursuant to an easement on that property and that float as it goes down to the river and there is some heavy brush in that area to the left. He also noted he has not been along his neighbor’s property as you get closer and closer to the water, but he did know along the right side of the easement walk there is some fairly heavy shrubbery and also on the left side. O’Donnell stated if an arborist was given the task he would also review the area around this clear cut lot which would give some assistance in the restoration plan.
Bechtel stated the reason it is helpful to have something documented by someone else is if we are not interested in a count by count tree replacement but at the same time we do not want months going by debating whether it was thick or thin so if someone determines how many trees were taken down it establishes a benchmark.
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Donlan stated they would come back to the commission with a revised plan. Bechtel asked if any topsoil had been delivered to this property since the Cease and Desist was issued.
Donlan stated he was sure there was but did not feel that had anything to do with this issue. Bechtel asked where the topsoil was dumped? McAraw stated it was dumped on top of the existing grass areas. Bechtel asked if she could show the areas on the plan.
McAraw stated the existing top soil was rocky and therefore the existing top soil was raked out and new soil was brought in. Bechtel asked if any silt fence was installed prior to the dumping of the top soil? McAraw indicated there was not and it was not dumped in a wetland area. Bechtel stated, however if grass had been planted beyond the limits of clearing it would be under this commission’s jurisdiction. Bechtel asked if the dirt extended beyond the orange boundary around the house. McAraw stated she was unclear. Donlan stated he could not state either way. O’Donnell asked the applicant to provide photographs of the newly top soiled area.
Linde stated he felt some of the species shown on the plan will be destroyed by the deer.
McAraw stated those were the planting suggested in the landscape booklet provided by the commission. Linde stated the suggested planting book are suggested plantings for wetland areas but does not necessarily take into account the deer resistance. Linde stated it is highly likely the plan the commission receives will not have 24” oak or whatever was actually taken out he felt it was important to have stable and deer resistant underbrush to stabilize the area.
Bechtel stated it was brought up at last months meeting by Evan Griswold, who is also a forester that he had recommended that the trees be a minimum of 3” caliper and no branches below 6’.
DiCamillo suggested the commission address the erosion on the site between now and when the trees will be planted. Bechtel stated the commission has not been on the property since March at which time the grass was not even green. Bechtel stated the only way to determine if erosion and sedimentation controls are necessary is to visit the site. Bechtel suggested the commission schedule a site walk. Linde suggested the commission tack this site on to our existing site walks scheduled for June 18th, 2009.
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Linde asked Attorney Donlan to explain in his words what he thinks the commission will be looking for in the plan at their next meeting in two weeks.
Attorney Donlan noted he was not an expert but conceptually on the left side there would be a buffer, canopy type trees to replace the canopy type trees that were there and to try to replicate the natural undergrowth of the neighboring properties. Linde stated it would also include the restoration of the canopy to the original level. Donlan stated that was correct. McCulloch asked if he could more specific about the buffer along the wetland. He stated the commission generally asks for a 20’ wide buffer of plants. Donlan stated he was not sure that doesn’t already exist. McCulloch stated by the pictures it does not exist.
O’Donnell suggested the commission members add a site walk to their schedule on the 18th of June so there is a better understanding of the current condition of the site. Donlan stated he needed to discuss this issue with his client prior to committing to the site walk. Brown stated that he could discuss it with his client while the commission moves on to their next agenda item and to let them know. Donlan stated he did not think he would have a response that quickly. McAraw asked Donlan if he could be present. Donlan indicated he would check his schedule and let Ann Brown know if that would be possible.
Bechtel stated she was uncomfortable leaving this discussion without a more accurate description of what was removed from the site. She stated she would like to have somebody on the property to give an accurate description to avoid discrepancies as to what was on the ground without being punitive. Donlan asked the commission if they had an issue with Mr. Wilcox providing a count without an explanation. The commission stated they did have an issue due to the conflict.
O’Donnell asked if the applicant was responsible for hiring an arborist in this situation. Brown stated that would be the process.
Donlan asked if the restoration plan should include species as well as a count. Bechtel stated that was correct.
Linde stated to be clear anything over 6” in diameter and an assessment as to whether the condition of the under layer prior to clearing.
Bechtel stated if the applicant cannot agree to the site walk on the 18th of June her suggestion would be for Ann Brown with another commission member visit the site to check on the erosion in an effort to continue to move this application along. Linde agreed to make himself available to walk the site.
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Linde stated that this commission has made it clear by its actions in scheduling the meeting tonight that this is a very serious issue to us and they would appreciate their cooperation in anything they could do to move the process along in the next two weeks.
FMTM – ARIA, LLC – DISCUSSION OF STABILIZATION OF THE SITE
Ann Brown reported she had sent a letter to Frank Martone about the site and he immediately called her back to discuss the issues in the letter. Brown stated he was going to go out with a hydro-seeding fellow to estimate the area and get it done. Brown stated he hoped to complete it this week, however the rainy weather has been an issue. Brown also noted he agreed to install barricades to keep people from traveling into the area.
Respectfully submitted,
Kim Groves
Land Use Administrator
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