OLD LYME INLAND WETLANDS AND WATERCOURSES COMMISSION
REGULAR MEETING
TUESDAY, APRIL 26, 2011
PRESENT WERE: Chairman Robb Linde, Sabine O’Donnell, Evan Griswold, Skip DiCamillo, and Dave McCulloch.
Chairman Linde called the meeting to order at 7:30 p.m.
MINUTES OF MEETING DATED MARCH 22, 2011
Skip DiCamillo made a motion to approve the meeting minutes of March 22, 2011. Dave McCulloch seconded the motion. The motion passed unanimously.
MINUTES OF SITE WALK MEETING DATED APRIL 7, 2011
The item was tabled until the May Meeting. Dave McCulloch agreed to do the Site Walk Meeting Minutes prior to the May meeting.
NEW BUSINESS
11-10 – REQUEST FOR FINDING OF NO JURISDICTION – BARBARA WOODS – 100 SHORE ROAD
Brown reported that Ms. Woods has applied for a Special Permit for a Liquor Permit. She further stated the statutes state if there is jurisdiction of a Wetlands Commission an application must be submitted to this commission. Brown also noted that there are no wetlands at the site and no site work is intended. Brown asked the commission to confirm that there were no wetlands at the site.
Evan Griswold made a motion to find for no jurisdiction at 100 Shore Road. Skip DiCamillo seconded the motion. The motion passed unanimously.
11-9 – DANIEL & HAZEL PEASE -53 COULT LANE – ACTIVITY WITHIN THE REGULATED AREA
Fern Tremblay of Angus McDonald and Gary Sharpe and Associates presented the proposed plan for 53 Coult Lane. It was also noted that Mr. and Mrs. Pease also own the adjacent property at 51 Coult Lane. Mr.Tremblay stated this was an approved building lot
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which was part of the Coult Lane Subdivision in 1965. He stated the proposed plan shows a schematic location for a 4 bedroom home, associated septic system, and driveway. Mr. Tremblay stated that no activity is proposed within any wetlands. O’Donnell clarified that the driveway was located within the 100’ regulated area. Tremblay submitted a copy of the approval for the septic system from the Health Department.
Tremblay pointed out on the plan an existing shed and tennis court which encroaches onto the building lot. He further noted at this time there is no plans to remove it and noted it will be dealt with at the discretion of the buyer/seller as to whether an easement will be granted or it will be removed. Griswold noted that the lots were approved in 1965 and preceded the wetlands regulations. Brown stated the encroachment is a zoning issue and whether this encroachment has actually merged these lots and extinguished that subdivision approval.
Linde stated if the lots were merged and therefore needed a new approval for division his understanding was there must be access to that lot. Brown stated if that lot has in fact merged with 53 in order to pry it loose again they would need to go back to the Planning Commission for a Resubdivision Approval. Brown stated in that process it would also come back before this commission for an evaluation. Brown also noted that when the lot is developed even if it is an approved building lot it would still need to come back before this commission.
Griswold asked for a general description of the wetlands. Tremblay noted he was not a Soil Scientist but his interpretation was it was a wooded swamp and noted in August it was completely dry. Linde asked if any of the wetlands had the characteristic of a vernal pool? He further stated he felt this was the perfect time to visit the site and determine this and suggested that Richard Snarski visit the site.
O’Donnell asked what surface was proposed for the driveway. Tremblay indicated it would be a gravel surface. O’Donnell asked if there was any way the driveway could be moved out of the regulated area or if any of the existing paved surfaces could be used. Tremblay stated it would be very difficult.
The commission agreed to set a site walk for Thursday, May 5, 2011 at 5:30 p.m.
11-12 – JOSEPH E. CHONTOS – 38 NECK ROAD – CONSTRUCTION OF A BOATHOUSE
Robert Nemergut, P.E. stated the property is located on the west side of Neck Road just north of the Old Lyme Marina and is approximately 0.304 acres in size located in the WF zone. He stated it is a steep to moderate grade from Neck Road and then it flattens out.
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He noted there is a tidal wetland associated with the property and also noted that the inland wetlands which vary from 15’ to 20’ were flagged by Richard Snarski. He also noted it is located at elevation 12 and in the 100 year flood plain. Chontos noted the area has not been mowed since last year when he came before the commission for a permit for the septic test pits.
Nemergut stated the proposal is to construct a 24 x 33 boathouse. He stated the south half of the boat house foundation would be a crawl space and the north side would be on exposed pier foundation. The water side would have an elevated deck on piers approximately 10’ x 33. He also noted this project would include a small septic system because the boathouse proposes to have a bathroom and laundry facilities. He stated water service would be provided from the house across the street (also owned by Mr. Chontos) and under Neck Road to the boathouse. He stated a 4’ wide pathway is also proposed with a pea stone surface and noted there would be no vehicular access to the site.
McCulloch asked if the walkway would be elevated? He stated the walkway from the house would be elevated to get up to the first floor elevation of the house. He stated it would be a narrow ramp. He stated the path to the water would be at grade.
Nemergut noted that there was a permit issued by the DEP in 2004 for a dock to be constructed on the site. Griswold asked if the permit was still in effect. Nemergut confirmed it was still an active permit.
O’Donnell asked if the applicant had been given a permit from DEP to place material in the tidal wetlands. Nemergut stated not at this point. He stated they have just begun the process with this commission first and indicated that Mr. Chontos wanted to do what was best for the site and deemed to be the least disruptive to the wetland.
Penny Sharp, Certified Soil Scientist stated she had reviewed the functions and values of the wetlands and has prepared a report for the commission. She stated the vegetation is mostly herbaceous species with the exception of a crabapple at the southwest corner of the wetland and planted yew trees along the northern boundary. Sharp stated she would also have to revise the report as she didn’t realize the walkway was part of the proposal.
Sharp stated the wetland has a low functioning value but it does have the ability to process nutrients due to the type of vegetated cover. She further stated in her opinion the proposed encroachment into the regulated area will not result in the loss of functional wetland habitat or negative impacts to the existing wetlands. She also would recommend shrub plantings to be placed adjacent to the wetland area. She also noted that it would serve to define the boundary, trap windblown and other debris from entering the wetland as well as protect the wetland from unintended encroachment. She noted that
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species to consider would include winterberry, high bush blueberry, northern arrow-wood, spicebush and silky.
O’Donnell stated it was her understanding at this point that Penny Sharp had not looked at the impact of the footpath access on the wetland. Sharp stated that was correct. O’Donnell asked if she could provide her opinion as to what would have the least impact on the wetland.
O’Donnell asked what types of boats would be stored in the boathouse and how would they be transported to and from the water. Chontos stated they would be kayaks, canoes and a small sailboat. Chontos referred to the drawing and stated it depicts a row of doors and noted it was not practical from a wetlands perspective to have the entire doors operative so he suggested using one door to bring the boats in and out to limit the disturbance to the wetlands. Chontos stated that he has no intent to maintain any lawn and is entirely open to any suggested plantings.
DiCamillo asked what the access would be from the gate to the boathouse. Nemergut stated it would be decking with stairs down and noted it was all within the setbacks. He did indicate that do to the current grade it would need to be elevated.
O’Donnell asked if the boathouse could be converted into a residence. Brown stated that currently residents are not allowed in this zone. Linde asked if it could be an apartment. Brown stated no. McCulloch asked if the proposal met the height requirements. Nemergut indicated it was not more than 35’ from the ridge.
Linde stated that Penny Sharp indicated that the construction would not have an adverse impact on the wetlands. Linde asked if daily activity within 5 feet of the wetlands would have any adverse impact because of the tremendous amount of additional use. Sharp stated it was an isolated wetland and not part of bigger area so she did not have a lot of concern. DiCamillo asked if the structure could be moved closer to the road. Nemergut stated they are currently within a foot of the setback line and also they had to comply with the minimum separation distances from septics.
Linde stated whenever a building completely abuts a clearing line we have found in most cases that anywhere from 5’ to 30’ eventually gets cleared or trampled down over time. He stated there is no way someone can walk around this property and not trample through the wetlands. Linde stated he would like to see a plan on how it would prevent people from walking through this area and thus protecting both the inland and tidal wetland.
O’Donnell asked the applicant if they could stake the four corners of the building including the deck prior to the site walk.
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Linde stated he would like to confer with the DEP to determine what the best way would to handle the walkway prior to the next meeting. The applicant agreed. Linde also requested if it was the applicants intent to leave the area around the building a no mow area and in its natural state it be labeled on the plan in the event of a change in ownership.
The commission agreed to set a site walk for Thursday, May 5th, 2011 at 5:45 p.m.
11-14 – TALCOTT FARM ASSOCIATION – REMOVAL OF FALLEN TREES AND BRANCHES
David Primo stated the association would basically like to clean up the area along the road. He stated there is a tremendous amount of fallen dead branches and stumps that are visual from the roadway. He stated most of the debris can be picked up by members of the association and then be chipped and hauled away. Primo stated most of the trees are marked in red as well as approximately six stumps.
O’Donnell asked if there was a map delineating the area. McCulloch stated they are marked on site. O’Donnell stated she felt a map should be submitted as part of the application that the commission can refer to. O’Donnell reviewed the plan submitted with the application as well as the photographs.
The commission agreed to set a site walk for Thursday, May 5th, 2011 at 6:15 p.m.
OLD BUSINESS
11-3 MATT WARD – 23 CROSS LANE – GRADING AND DRAINAGE WITHIN 100’ OF THE REGULATED AREA
Ward submitted the commission with a drawing of the site as requested. Brown stated she spoke with Ed Adanti, Public Works about cleaning out the culvert and he agreed to review the site as well as the drainage running down the side of the property. Adanti thought he might be able to divert the water into the culvert system behind Mr. Ward’s house.
Ward also agreed to provide a buffer up to the edge of the pond and noted it would only be mowed once a year in the fall.
Skip DiCamillo made a motion to approve the application as presented on the plan. Dave McCulloch seconded the motion. The motion passed unanimously.
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11-7 KATHY CLARK– 448 SHORE ROAD – WIDENING THE DRIVEWAY AND REPAVING THE EXISTING PARKING LOT AND DRIVEWAY WITHIN 100’ OF THE REGULATED AREA.
The commission noted they visited and observed the site.
Dave McCulloch made a motion to approve the application as submitted. Skip DiCamillo seconded the motion. The motion passed unanimously.
11-8 - 62 GRASSY HILL ROAD – Demolish and replace the garage +/- 5 feet farther from the wetlands, construct a 10 foot by 40 foot breezeway within the 100 foot wetland setback area; reconstruct the seawall along the edge of Rogers Lake.
Brown noted that there are two other small items that are in the file which include the installation of air conditioning units and propane tanks along the side of the house which are within 100’ of the wetlands. Brown noted there is a plot plan in the file depicting the locations and asked the commission to consider including these items as part of the evaluation process. It was also noted that these items existed previously and were just replacements in the same location.
Brown also noted the application before the commission really consists of two parts. The first consists of the garage and breezeway and other is the construction of the seawall.
Linde suggested the commission discuss the addition. The contractor explained that they are dismantling the existing garage because it is located only 7’ from the 12’ setback line. He stated therefore they could not add onto the existing garage and the current garage is two small and can only fit one vehicle. The proposal is to have two separate bays. He stated the new garage will not encroach into the setback and the angle has been adjusted to allow for a lower roof line. He stated there would be a cement walkway which will be 4’ wide.
The commission and the applicant discussed the letter regarding the construction of the proposed seawall on the site from Tom Metcalf dated March 28, 2011. The applicant noted he submitted a revised drawing as a result of Mr. Metcalf’s comments. Brown stated she spoke with Mr. Metcalf about the revised drawing and he had not done a complete review but he did not believe that it addressed all of his concerns. Brown further stated that Ron Rose also had some issues with the proposal. Therefore, she felt that Mr. Metcalf suggested that an engineer be retained for the wall.
The owner asked if the commission could review the application in phases. Phase I for the addition and Phase II for the stonewall. He further stated he would be happy to retain an engineer to prepare a plan. Brown suggested the commission act on one portion of the
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application and hold off on the other portion until further information is provided. Brown clarified that the permit would only be for the portion of the project the commission approved.
Linde stated he wanted to be sure that there would be ample room to do work on the wall once the other work is completed. The applicant stated he felt he could get some access from the neighbor. Brown also noted that there was some discussion in the beginning that the septic system might need to modified. McDonald showed the location of the septic on the plan and indicated there could be an issue but they wouldn’t no that until they started digging and if there is they would take the two galleries on the ends and stick them on the other end. He further stated it was all sandy soil in that area.
Griswold stated he did not see any impact from the elevated breezeway or relocation or garage. McCulloch concurred.
Evan Griswold made a motion to approve Phase I of the plan dealing with the garage and elevated breezeway including the replacement of the air conditioning and propane tanks and possible relocation of the portion of the septic system. Brown stated the applicant would submit a modified plan showing the location.
Linde amended the motion to include the movement of the septic galleries subject to the approval of the wetlands officer.
The owner also clarified that he would be retaining an engineer and would bring a plan back before the commission for the seawall construction. Brown also noted that the proposal should include a buffer which should also be shown on the plan.
Skip DiCamillo seconded the motion
Linde amended the motion again to note it did not include the approval of the seawall because the commission has not been provided sufficient information on the structure of the seawall. .
Linde stated the plan did not show that the walkway was elevated on the plan. Brown stated it was a 4’ concrete walkway on the ground with a roof over the area. Linde asked the commission if they were comfortable with the size increase of the garage which is almost double the original size. The owner reviewed the garage on the plan.
The motion passed unanimously.
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FRANK MARTONE – FMTM – BOND RELEASE – BOSTON POST ROAD
Linde stated that Mr. Martone is requesting a release of the erosion and sedimentation bond. Martone stated that was correct. Linde stated he walked the property over the weekend and there was fresh debris on the site because the cable had been taken down and someone had gained access into the site. Linde further stated it was clear to him that the cable was not going to prevent people from dumping in this area. Linde stated the commission does have the option of requesting that the large boulders on the site be placed across the road which would prevent anyone from driving back there. Linde stated he also does not like what he sees back there in the area where Phase II was started prematurely. Linde stated there is also water running down the cleared road and it seems to be pretty armored
and noted the water looked relatively clear.
Brown asked if the cable was down when Mr. Linde visited the site. Linde stated it was down in the morning but put back up in the afternoon. Brown stated she also visited the site and stated she felt a couple of additional cables through the eyelets would keep anyone from dumping. Linde stated given that the commission has no idea how long the property will be left, he really felt there should be a more permanent blockade installed. Brown asked how many stones did he feel would be adequate? Linde stated how ever many it takes to go from tree to tree to prevent vehicular access into this area. McCulloch expressed concern about fire access into the site. Linde stated it was no different now than before it was cleared because a truck would not have been able to get back there
then.
Martone stated he was not willing to bring machinery back to the site and move the boulders. He noted he does not have the funds. He stated he is more than willing to follow Mr. Metcalf’s recommendation. He stated he would install a thick chain. Martone further stated he allowed the commission access to the state. He stated he was more than willing to comply with Mr. Metcalf’s recommendation. Linde stated he saw the cable down from the road. Linde stated he told Ed Cassella, Mr. Metcalf and Ann Brown that he did not have sufficient information to release the bond. Martone stated once again there is no money to bring equipment down to move the rocks. Martone stated he cannot block the road entirely and there still would be access into the site from the
state property.
Linde stated the commission can do one of two things. They can require the boulders be installed to protect the wetlands and give it a chance to re-vegetate and the town can do the work with the bond money. Martone asked if the commission felt it was not good enough back there. Linde stated the property needs to be protected. Martone stated he would protect it with a big chain. He further stated people can access the property from both the right and left and he does not have the right to block that access.
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O’Donnell stated she felt the property line should also be blocked where they access onto Mr. Martone’s property. Martone stated he would have to put rocks all the way up the road. O’Donnell stated she did not know where that access was. Martone stated that Stones Ranch abuts his property. McCulloch stated he did not feel we should require him to block off his entire property. O’Donnell agreed but felt we should discourage traffic and the boulders should be moved. Linde stated it was an expense. Martone stated if he had the money he would but he does not have the funds. He stated once again he would install a thick chain. O’Donnell asked for the bond amount. Linde stated the soil and erosion bond was approximately $6,000.
Groves noted that a portion of the bond money will be used to pay for Tom Metcalf’s review fees. O’Donnell asked if there was a way to use the money. Brown stated the applicant does not have access to spend the money to do the work. Brown stated the town could take the money but this would involve a very lengthy process unless the applicant agreed.
Linde stated the question is does this commission feel the wetland is properly protected as it currently stands and he thinks the answer is no. Therefore the next question is what we think is required to insure the wetland is properly protected. McCulloch stated he felt the cable would improve the situation and also noted that he also felt if people wanted to they could also drive around the boulders. Martone stated he would install a locked chain. O’Donnell stated she did not approve this process and did not feel it was adequate to secure property and also expressed concern about people getting injured by the chain and felt boulders were much more visible.
Linde stated if he the applicant refuses we have the responsibility to protect the wetland and have the town act on our behalf. Martone stated the town has no responsibility it is still his property.
Martone stated he complied with Mr. Metcalf and the commission is now not happy with that solution. O’Donnell stated he does not make decisions only recommendations. Linde stated that the cable appeared to be appropriate at first but it obviously didn’t work and those things happen. He further asked if this commission felt that a chain is an appropriate alternative. Skip DiCamillo also stated he felt that people will get into the site if they want to no matter how it is secured. Martone agreed no matter what is installed if people want to get in they will. Brown stated they will just dump on the edge of the road. Linde stated that would be a better option because it would not be in the proximity of the wetlands which this commission felt was the most sensitive part of
the application. Linde stated we wouldn’t have to worry about this if no work had been done beyond Phase I.
Linde stated there are three options: Do nothing, make a motion to require that a chain be placed across the entrance and once that chain is properly installed the bond will be released and or make a motion that boulders be placed across the entrance and once they are placed the bond will be released.
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McCulloch stated that Mr. Martone took the engineer’s advice and completed what he asked.
McCulloch made a motion that we request Mr. Martone to install a chain across the opening and be inspected by Ann Brown, and when all legal conditions are met the bond will be released.
Discussion:
O’Donnell suggested the chain be tried for a period of time.
DiCamillo asked what would happen if the commission took no action. Linde stated if nothing is done the wetland does not get protected and the bond is not released.
Linde stated if Public Works is willing to move the rocks he would be more than happy to have them do that. Brown stated she would ask the Director of Public Works. DiCamillo asked for the specifications of the chain. Martone stated the chain will go from tree to tree with locks at both ends and it will be strong enough to hold a piece of equipment. Linde stated if we can get Public Works to move the rocks is that a preferred solution for all parties.
Motion Amended
Linde made a motion to approach Public Works to see if they would be willing to install the boulders across the roadway to protect the wetlands, and if Public Works will not do that then upon installation of chain of undetermined thickness and approved by Ann Brown.
Discussion:
Brown agreed to research the appropriate thickness.
McCulloch accepted the amendment. Linde read the Notice of Revocation/Termination of Town of Old Lyme Inland Wetlands and Watercourses Wetland Permit into the record.
The motion passed 4 to 1. O’Donnell voted against.
O’Donnell noted for the record that she felt the commission has made a poor decision and she felt Mr. Martone has been a very irresponsible developer from day one and she resents that her tax dollars are being spent through Public Works to rectify a situation that this developer was asked to do years ago and that he gets to walk with his bond money which we collect exactly for these purposes.
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McCulloch stated he complied with the request of a barricade and the specification of the barricade was not outlined. O’Donnell stated we now know the barricade was not adequate. McCulloch said you cannot make those judgments. O’Donnell stated she felt it sets a precedent for irresponsible developers to do whatever they want and totally disregard what the commission regulates for them to do and now he is getting his bond money returned. Linde stated as a town taxpayer he agreed with part of that but he felt unfortunately he felt it was a minimum investment to make sure that the wetland was protected in a way that he was not sure that we would have been able to again and had we chosen not to come up with a compromise there is every likelihood that Mr. Martone would not have revoked the
permit and therefore this town is in far better shape with there being no permit allowing any work on that property at this point.
Linde stated he was a member of this commission when the permit was granted and perhaps it should not have been. He further stated if the work had been executed properly as outlined in the permit we would not be having this issue. O’Donnell stated she was present when he was told time and again to not go beyond and then he went against the instructions of the commission. Therefore she felt it rewards his irresponsible behavior. Linde stated he felt it was a victory for the town as a well having that permit revoked.
ENFORCEMENTS
ROWLAND ROAD – TORRES
Brown stated he is going to removing all the debris that was placed in the wetlands. She stated they will take the debris to the landfill and noted they felt it would take in the neighborhood of two months. Brown agreed to visit the site again in one month. She also noted that the removal by hand was far less invasive then bringing machinery into the site.
Linde thanked Bechtel and McCulloch for contacting him to visit the site. He also noted that Brown did a really nice job resolving the matter without having to do issue a formal violation to the applicant.
MILL POND LANE
DiCamillo stated it was reported to him but he had not personally observed the site that a homeowner on Mill Pond had cleared down to the pond beyond which was additional clearing to the original permit. Brown stated if the property that was being discussed was the Hornby Property she noted that they currently have an application approved for a garage that is more than 100’ for the wetlands. Brown agreed to visit site.
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DUCK RIVER CEMETARY
Brown noted that there has been some fill placed in the cemetery but she felt it was tidal wetland and noted that it was under control.
CONNECTICUT WATER COMPANY
Brown stated then when the Water Company installed their tanks informed us that the IWWC does not have jurisdiction but out of courtesy they came in and they are apparently going to purchase Hawks Nest Water System and they will be upgrading including new pipes.
BOAT HOUSE
DiCamillo questioned whether a boat house like that was necessary. Brown stated when he was before the commission previously he explained why he wanted that boat house. He stated he wanted it to include a recreation area. Linde stated he did open the door in discussions to consider a smaller footprint. Linde also suggested that the commission members bring up their concerns as early as possible to the property owner so they have the opportunity to address the issues. Linde also stated the commission could retain their own expert. The commission stated they would walk the site and make a determination at that point. Brown suggested that after the site walk if the commission has concerns they could choose to hold a public hearing about the impact which will require a closer
evaluation. Linde also noted that Penny Sharp specifically stated that there will be no impact from the construction. She didn’t completely address whether the additional use would have an adverse impact.
REGULATION OF TIDAL WETLANDS
Linde asked if the commission had voluntarily chosen not to regulate tidal wetlands. McCulloch stated it fell under the jurisdiction of the Planning Commission. Brown stated it depends she has letters from two different agencies at the DEP one stating you do have jurisdiction over tidal wetlands and the other stating you don’t. Griswold stated it depends on whether the town has chosen to regulate tidal wetlands. He also noted that the Town Of Lyme has chosen to regulate tidal wetlands and the Town Of Old Lyme has chosen not to. Brown stated that the Zoning Commission has the jurisdiction for Coastal Site Plans and for that there is about a foot of jurisdiction overlap between the DEP and high tide line and mean high water.
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TALCOTT FARM APPLICATION
DiCamillo questioned the application. Brown stated the application is to really just pick up dead fall and remove a couple of trees so they don’t fall. She further stated there will be no work beyond 50’ from the road. McCulloch stated ecologically it is harmful to pick up all the stuff. She noted the dead fall will remain along the back and just be removed along the road. DiCamillo stated he indicated some were back in the woods. O’Donnell stated one of the pictures shows a wet area.
BUTTON BALL ROAD & MILE CREEK ROAD
McCulloch stated there is a lot of dumping on the edge of the wetlands. Brown agreed to visit the sites described by Dave McCuolloch.
Respectfully submitted,
Kim Groves
Land Use Administrator
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