Inland Wetlands and Watercourse Commission
Regular Meeting
Tuesday, June 28, 2011
Present were: Chairman Linde, Linda Krulikowski, Dave McCulloch, Skip DiCamillo, Janet Bechtel, Evan Griswold and Sabine O’Donnell.
MINUTES OF REGULAR MEETING DATED MAY 24, 2011
Linda Krulikowski made a motion to approve the minutes as submitted. Dave McCulloch seconded the motion. The motion passed unanimously.
MINUTES OF SITE WALK MEETING DATED APRIL 17, 2011
Janet Bechtel made a motion to approve the minutes as submitted. Skip DiCamillo seconded the motion. The motion passed unanimously.
MINUTES OF SITE WALK MEETING DATED MAY 5, 2011
This item was tabled until the July meeting.
MINUTES OF SITE WALK MEETING DATED JUNE 23, 2011
Sabine O’Donnell made a motion to approve the minutes as submitted. Skip DiCamillo seconded the motion. The motion passed unanimously.
NEW BUSINESS
11-19 BUCKLEY FAMILY REVOCABLE TRUST, FRANCIS J. BUCKLEY, JR. TRUSTEE, 84 GRASSY HILL ROAD – REPAIR APPROXIMATELY 50’ OF THE EXISTING RETAINING WALL ALONG ROGERS LAKE TO ELIMINATE SOIL AND EROSION.
The contractor, Rick Koller, Koller’s Landscape & Design, presented the application on behalf of the Buckley Family. He stated presently there are stones that are slipping into the lake from the wall which is creating some soil and erosion. He stated they would like to repair that wall and noted there will be no mortar or chemicals used. He stated the
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project should take no longer than two days and no new materials will be brought into the site. He stated he would like to start the project when the lake levels lower a bit which may not be until the winter.
Linde asked if a plan was submitted as to how the wall would be constructed. Kohler stated they would just be removing the blue stones and replace them with flat stones. Linde asked if there would be any excavation involved. Koller stated there is no tear down involved. Brown stated there was a written description of the project included with the application. The commission agreed to set a site walk for Thursday, July 7th at 6:15 p.m.
11-20 – GALCO, LLC – 17 SILL LANE – CONSTRUCT A SINGLE FAMILY HOUSE AND A SEPTIC SYSTEM IN THE REGULATED AREA
Robert Pfanner, Pfanner Associates presented the proposal. Mr. Pfanner stated the project is located on Sill Lane just north of Griswold Avenue and Mill Brook. He stated the parcel is presently a vacant wooded lot. He stated the proposal is to construct a four bedroom house with a septic system and well. He noted the wetlands on the plans as well as the drainage pipes in the area. He stated the proposal includes a 10 ft non disturb buffer and noted the buffer is increased as it gets closer to a more significant wetland area. He noted the parcel is located within in two zones (R-15 and R-40) and therefore setbacks are increased. Linde asked if this was an approved building lot. Pfanner indicated it was a lot of record but it has not yet received health approval from the
Sanitarian.
DiCamillo asked how far the septic was located from the brook. Pfanner indicated it was about 100 feet from the actual brook. The commission agreed to set a site walk for Thursday, July 7th at 6:30 p.m. and asked the applicant to stake out the limits of clearing as well as the corners of the house.
OLD BUSINESS
11-9 – DANIEL & HAZEL PEASE – 53 COULT LANE – ACTIVITY WITHIN THE REGULATED AREA
Fern Tremblay, Professional Engineer with Angus McDonald, Gary Sharpe & Associates gave a brief summary of the project to date. Tremblay stated the project was submitted on April 28th, 2011. He stated the plan demonstrates the proposed activities for the construction of a four bedroom home and the associated septic system which was approved by the health department as well a proposed gravel driveway to access the site.
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He noted the commission walked the site on May 5th, 2011 at which time the wetland areas were viewed and the commission asked Richard Snarksi who had initially flagged the wetlands to revisit the site and determine whether or not these wetlands had vernal
pools. Tremblay stated that Snarski determined they were not vernal pools and also noted that there were no intermittent watercourses with either of the wetlands on the site. Tremblay submitted a letter from Mr. Snarski outlining his findings at the site based on his three visits to the property. Tremblay noted that Snarksi stated in his letter that “he believes that the construction of the house, driveway, septic system will not have a significant impact on the function or value of either wetlands”.
Tremblay stated other issues that were discussed were the encroachment of the tennis court from 51 Coult Lane onto 53 Coult Lane. He stated that this matter was discussed with Attorney Mark Branse. Brown stated she did speak with Attorney Mark Branse specifically about the circumstances here of the two lots and the layout in general of the wetlands. She further stated the commission wanted to know if the commission had the power to require the two lots to share a driveway in order to protect the wetland resources. Branse stated the commission certainly does have that right. Brown stated at the last meeting the commission discussed a number of concerns it had about the proposed driveway and its proximity to the wetlands and the fact that it’s between two wetlands and whether
it might have any impact by interfering with the drainage between the two wetlands. Therefore the commission does have the right to require minimization of the development and improvements on the lot in order to protect the wetland resources. Brown stated the driveway exists up to the house at 51 and the commission thought it would make sense to continue that driveway to access the new house and if the commission believes that will have less impact and if the commission feels there is a chance of adverse impact from the proposal they certainly have the right to require something different.
Tremblay stated the commission expressed a desire to have a shared driveway to access the parcel but it was his opinion as a professional engineer as the wetlands scientist that this proposed gravel driveway does not propose adverse effects to either of the wetlands.
Attorney David Sherwood stated he was asked by the Pease’s to answer the same question that was asked of Attorney Mark Branse. Sherwood stated it was his understanding that the question asked was under what circumstances the commission can consider other land of the applicant under an application for a proposed regulated activity. Sherwood stated that based on what Brown stated he agreed with Attorney Branse but he also stated that he felt the law was pretty clear that unless the commission feels that the proposed regulated activity will adversely impact a wetlands and watercourse that other land owned by the applicant is irrelevant.
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He further stated the basic reason why it is irrelevant is because the applicant is obligated to look at alternatives to a proposed regulated activity only if those alternatives can help avoid some recognized or identified wetland impact. Attorney Sherwood submitted a memo for the record to the Inland Wetlands Commission dated June 28, 2011.
Sabine O’Donnell asked if there was any case law that he had relied upon for his assessment that the commission is not to consider circumstances such as this where the applicant owns the neighboring property. Sherwood stated there is case law provided in his memo. The commission reviewed and discussed the documents provided by Attorney Sherwood.
Linde stated as he recalls we ended the last meeting wanting to get Snarski’s input as well as Attorney Branse. He stated we have those opinions before the commission and we don’t have any contradictory evidence but if the commission is questioning the reports and information provided by the applicant we could hire our own expert. DiCamillo asked for a copy of Mr. Snarski’s certifications. Brown provided him a copy of his memo which listed his certifications under his signature.
Griswold asked if the driveway would be gravel. Tremblay indicated that was correct. Griswold stated it was presented that there would be sheet flow over the driveway and that would be a concern if the driveway turns into a quagmire. He stated if the driveway is constructed as designed and maintained it would be fine but if it is not during heavy rains it could become a problem. Tremblay stated the driveway will be constructed at grade and will not be elevated so therefore he did not feel there would be any flow to erode away the driveway. Krulikowski stated she did not feel there was any sub-terrain flow. Griswold stated when there are two wetlands relatively close together and one is higher than the other than you would assume there is a certain amount of water under the soil
especially when the leaves are off the trees. O’Donnell asked if the town engineer has reviewed the plan. Brown noted that the plan was not forwarded to Metcalf for a review.
Attorney Sherwood stated he did not have a problem if the commission wanted to condition any approval based upon a review by the town engineer. O’Donnell stated she just wanted to be sure that a gravel driveway in that location with a north to south decline is not going to create problems for the site. Linde asked if the limits of clearing have been shown on the plan. Discussion ensued and Tremblay drew the clearing limits onto the plan as well as initialed it and submitted the drawing as part of the record.
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Attorney Sherwood stated that commission has received professional opinions from both the engineer and wetlands expert that there will not be an adverse impact to the wetlands. He further stated he felt it was reasonable to ask the town engineer to review the driveway design as well as holding a pre-construction meeting.
Evan Griswold made a motion to approve the application as submitted with the changes that have been put on the plan for clearing, the plans be reviewed by our town engineer, as well as pre-construction meeting by held with the contractor at the time of construction.
Bechtel stated in addition to the construction meeting with the town engineer, she would add the condition that states that any future alterations or improvements to the final inspected driveway must come back to the Inland Wetlands Commission for approval, that the driveway at 53 Coult Lane is to remain gravel in perpetuity, the limits of clearing shall not exceed 20’ from the southern boundary of the driveway as shown on the plan.
Bechtel also discussed filing the conditions of approval on the deed for the property. She felt in the case of a lot that has not been sold and is not owned by someone she would like the conditions recorded with the deed in the land records so there is no misunderstanding as to what is expected for this particular site and she felt this would be a good practice for all properties moving forward on a regular basis. McCulloch concurred.
Griswold amended his a motion to include Bechtel’s additions: The motion now reads to approve the application as submitted and modified with the following conditions:
1. The clearing limits shown on the plan.
2. Final driveway plan be reviewed and approved by the town engineer.
3. A pre-construction meeting be held prior to construction with the contractor and
engineer.
- The driveway remain gravel in perpetuity.
- That any alternations or improvements in the future to the driveway would require the property owner to come back before the Inland Wetlands Commission.
- The limits of clearing are not to exceed 20 feet along the southern boundary and no more than 4 feet to the north of the driveway.
- These conditions be are to placed on the plan and filed on the land records.
Linda Krulikowski seconded the motion. The motion passed unanimously.
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11-14 - TALCOTT FARM ASSOCIATION – REMOVAL OF FALLEN TREES AND BRANCHES
Dave McCulloch made a motion to accept the application as presented. Linda Krulikowski seconded the motion.
Linde asked for discussion:
Evan Griswold stated he did not have any problem with Area 1, but noted he did have an issue with Area 2 in the wetland and further stated part of the function of the wetland is to protect the creatures that use the wetland as a permanent home or transient area for eating and resting. Linde noted that the statement in the report indicates that no activity will occur in the wetland itself. Griswold stated that Area 2 states it is in the water. Krulikowski stated that they are removing the upright branches but not the underlying supporting branches. Griswold stated the upright branches provide cover and feeding areas for birds and he does not feel for aesthetic purposes it is necessary to remove them.
O’Donnell asked the applicant to delineate the areas being discussed. The applicant reviewed the photographs with the corresponding areas. Krulikowski asked if we are distinguishing the small vernal pool with the pond. Linde asked Mr. Griswold if it his opinion that the upright branches as habitat for birds and the like and while he would love to protect birds and the like the commission has to protect the wetland and wetland character and therefore did he feel those branches have a function for the wetland itself. Linde further stated the commission has received a statement from a Certified Wetlands Scientist stating that the work that is proposed within the regulated area will not result in any impact upon the nearby wetlands or wetland functions. O’Donnell stated she has a
problem approving an application without a map that refers to the particular areas. She further stated we have no pictures of vernal pools and felt it was very confusing not having something that actual connects to what is happening on the ground.
Brown stated when the application was received a description of the work was provided along with photographs. She stated the work that was proposed is within approximately 40 to 50 feet from the road and around the peripheral of the fire pond and consists of the removal of fallen tress and branches (See Photographs 2 & 3) removal of several snags dead and broken off tree trunks (See Photographs 2 & 3) thinning an area of less than 1” caliper invasive black birch the only live material to be removed. O’Donnell stated we still don’t know where this is on the ground.
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David Primo, representative of Talcott Farm, stated that Sharp clearly identifies Area 1 (the corner of Catbriar Lane and Talcott Farm Road) which is very clear on the map. He stated Area 2 and Area 3 are referred to and referenced to Area 1 (that Area 2 is to the west of Area 1 and Area 3 is to the west of Area 2) and they are all north of Catbriar Lane. Krulikowski asked if there was discussion of the vernal pool prior. Linde stated there was not. Krulikowski stated this was her main question is that the small vernal pool needs to be protected and she did not remember in the site walks. Brown stated it is a very small area. O’Donnell asked that Penny Sharp create a map that delineates what she is talking about.
Bechtel stated she felt the photos and description of the property are extremely clear and did not feel it was necessary to peg them on a map. She felt the biggest issue is what man made activity might impact the wetland areas that we don’t want to see disturbed. Krulikowski stated even though we are not removing any branches below imagine if you were a little amphibian in that vernal pool while someone is pouncing around on top of you. Primo stated with respect to removing the branches in the vernal pool that is not proposed to be done until August or September when that area is totally dry. He further stated the tree is not really laying on the wetlands or the ground it goes from the bank and is caught on another tree and is approximately 5 to 10 feet above the vernal pool and will not
decompose or break down quickly suspended in the air. He further noted that all the work is proposed to be done by hand. DiCamillo asked what the reason was for the clearing. Primo stated it is litter and debris of dead branches which we would like to pick up along the roadside.
Krulikowski stated at some times there can be safety issues with dead trees. DiCamillo asked what the commission would be approving. Brown stated the commission is approving what Penny Sharp describes in her plan which modifies the original submission. Linde stated the commission would be approving the activities described in the report.
O’Donnell stated if everyone feels the map is not necessary she would not have a problem approving as stated in the report with the condition that the activity happens in the discussed timeframe. Krulikowski stated her concern is with Area 2. Griswold stated he stood by his previous comments. Griswold stated he did not see any reason to do the work and felt the wetlands should be left alone.
Brown stated that Sharps report states that there is no work in the wetland. Krulikowski stated that Area 2 states to the west side of a small vernal pool. Brown stated she indicates twice in her report is that there will be no work in the wetlands which would mean no work in the vernal pool. Primo stated that Area 1, 2 and 4 are within the review
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zone. Area 2 is in the proximity of the vernal pool and with respect to the other areas it is literally picking branches up off the ground.
Krulikowski amended the motion to remove Area 2 from the activity. Bechtel asked what the commission felt the best timing was for the entire project. Griswold stated August.
Linde clarified by stating the motion is to approve the activities described in Areas 1, 3 and 4.
Motion was Withdrawn
Bechtel made a motion to approve Penny Sharp Regulated Activities Report with the exclusion of Area No. 2. Linda Krulikowski seconded the motion.
Discussion:
Griswold stated he has no issue with taking the logs out of Area 4 but Area 3 is perfectly natural litter and he does not feel it should be disturbed. DiCamillo concurred.
Primo stated that Area 3 is close to the road and noted he is continually picking up trash from workers who are traveling in and out which is an additional concern to the association and a possible fire hazard and asked that this be part of the record.
Linde stated his concern with the motion before the commission is that he is not sure it is defensible. He stated the commission has received a report from a wetlands expert who has said there is no impact and as a chair he suggested if the commission does not want to approve this application that the commission retains another soil scientist for an opinion.
Bechtel stated she felt at times we have let the law dictate what is truly common sense. She stated even though we have a recommendation it is within the purview of this commission to not agree with the information that comes before us. She further stated that she felt that Mr. Griswold makes a good point and she has really learned from the number of Talcott Farm meetings that the commission has had that there is a huge difference of opinion. She stated we have neat and tidy going on at Talcott Farm and then we have conservation which is the true intent of that particular subdivision. She further stated she understands the need to strike a balance and felt that Penny Sharp has done a good job but she felt we have reached a point where someone is going to want to come in with a shop vac and want to
vacuum up the wetlands. She stated it gets to be a little bit absurd.
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Bechtel stated it was okay to disagree at times and felt the commission needs to deal with the property owners in town and be fair and considerate about what is presented.
Bechtel suggested that the commission approve Areas 1, 3 and 4 or 1 and 4 and if everything does not rot down well enough in two years they can come back before the commission. She further stated she didn’t not think this type of application was one that we spout case law and open it up to a public hearing and drag in another wetlands scientist. She felt it was a lot more common sense.
Linde stated it was his understanding and he may be wrong but for this commission to deny this application we must believe there is impact. He stated we have no expert testimony indicating there is impact. He further stated in the presence of expert testimony he believed the commission was required by law to accept the expert testimony in the absence conflicting expert testimony unless there are experts on this commission that can disagree.
Brown stated she felt the commission sells itself short if they don’t credit themselves with some knowledge. Each of you has some expertise and experience as does she. She further noted many of us have been through the state mandated training which gives each of you credibility. Brown stated she agreed with Bechtel that you don’t just have to accept what the applicant produces and there is common sense and you do have a right to disagree.
Krulikowski stated the commission has a motion to approve Areas 1, 3 and 4 and an argument with regard to Area 2 and asked that a vote be taken by the commission.
Bechtel noted the motion was to approve the regulated activity report with the exclusion of Area 2. Krulikowski seconded the motion.
In favor: Bechtel, Krulikowski, McCulloch. Against: Griswold, DiCamillo, O’Donnell and Linde. Motion Failed 4 to 3
Griswold made a motion to approve Areas 1 and 4. McCulloch seconded the motion.
In Favor: O’Donnell, Griswold, McCulloch and DiCamillo. Against: Linde and Bechtel.
Abstention 1 – Krulikowski. Motion Passes 4 to 3.
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11-15 – QUESTA BUILDERS – 5-1 DAVIS ROAD EAST – CONSTRUCTION OF A 2 STORY OFFICE BUILDING WITHIN A 100’ OF THE WETLANDS
Sabine O’Donnell recused herself from the application.
Robert Doane, Doane-Collins Engineering was present to discuss the proposal on behalf of Questa Builders. The proposal is to break 12.6 acres from the property of Huntley Halls, LLC. He noted the application is also before the Zoning Commission and the Planning Commission. He stated there is a portion of the proposed roadway that will be within a 100’ of the wetlands on the western side of the property. He stated in order to follow the cart path he will be within a 100’ of the wetlands but noted the driveway will actually be on the downward side of the ridge going to the east so it will not have an impact on the wetland. He further stated he does not have the option of moving it down but when the details are presented to the commission he could demonstrate why it is in that
location. He stated the emergency access road also goes in very close proximity to the wetland but it currently exists and will remain as is with the exception of the location of the gate. He stated he has revised the plan pursuant to the site walk of last Thursday.
He stated the revised plan is essentially the same layout but the changes include the drainage outlet that comes along the eastern side of the parking which has been pulled back so the end of it is 90’ from the wetland area. He stated the other pipe is located at the end of the corner of the parking therefore, he could not move it much but he did pull up the silt fence location and leave the adjacent under growth with no disturbance. He also noted that he added curbing to the edge of the parking to control the runoff into the basin. He noted he also submitted revised plans to Metcalf today.
Brown asked what water is being infiltrated. Doane stated the first of inch of runoff from the paved surface and roof is being infiltrated. Brown asked if that inch fills up is there overflow. Doane stated there are two outlets which handle the overflow. Brown asked if the soils in the ditch tested out as wetlands soils. Doane stated they did not. Doane stated there was a question at the site of how the infiltration system is protected and he realized at that time he did not have a detail of the outlet and noted it has been added to the revised plans. He also noted that is one of the Best Management Practices.
Brown stated if the commission is concerned that there might be impact to the wetlands that now is the time to draw that conclusion to hold a Public Hearing. Bechtel asked for clarification on the exact location of the proposed site. Doane oriented Bechtel with the area and the adjacent properties.
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Linde asked if there was anything from preventing the commission from receiving the expertise from a wetlands scientist and then determining whether a public hearing is necessary. Brown stated there is timing guidelines that require and suggest the commission make a decision within 65 days of receipt or open a public hearing within 65 days of receipt. Linde asked if a public hearing could be opened at the next meeting. Brown stated if the commission is concerned about impact a public hearing could be held next month it just needs to be properly advertised. She further stated the commission may feel it is not necessary. She felt if the commission was going to require a hearing it would be nice to being the process next month. She stated if the commission is not concerned about impacts
and noted there are not many activities within 100’ of the wetlands. Brown also noted that this plan still has other steps to go through with both the Planning and Zoning Commission.
Linde asked the commission their thoughts on holding a public hearing. McCulloch asked if there was significant impact. Evan Griswold said the immediate impact would be on what appears to be a smaller wetland that was potentially man made. He further stated there did not seem to be significant impact on the wetland to the north. Bechtel stated she felt it application was more of an engineering issue than significant impact. She further stated she did not feel a public hearing was necessary. Linde stated he concurred and felt it was a project that if the engineering was done correctly very little additional water or volume or velocity to the wetland was being added. DiCamillo asked if the building could be moved. Doane stated what is dictating the placement of the building is
the 75’ radius from Davis Road which is only 20’ wide.
Linde stated that no determination was made and the commission still has the option to hold a public hearing if determined to be necessary.
11-16 - DONALD S. BRODEUR – 64, 66, 68 GORTON AVENUE – PLACEMENT OF LARGE BOULDERS ALONG THE EASTERN PROPERTY LINE
Linde stated the commission visited the site and based on what the commission saw on the ground it was determined that the applicant did not need to attend the meeting.
Skip DiCamillo made a motion to approve the application as presented with the condition that the grass clippings be removed from the wetlands and the site be monitored to prevent further dumping and the owner be responsible for the removal of any debris that might be deposited in the future. Linda Krulikowski seconded the motion. The motion passed unanimously.
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11-17 – ESSEX SAVINGS BANK – 101 HALLS ROAD – REPLACEMENT OF THE EXISTING PARKING AND CURBING
Linde stated the commission visited the site and determined that the work proposed was simply a replacement of the existing driveway, and repair if necessary the existing drainage system with no additional encroachment on the wetlands. Evan Griswold made a motion to approve the application as presented. Dave McCulloch seconded the motion. The motion passed unanimously.
11-18 – JOHN T. SHINKLE – 1 CLARKS LANE – MODIFICATION OF THE VEGETATION ON THE PROPERTY
Linde stated the commission visited the site. Brown noted that Mr. Shinkle modified the plan slightly in response to the commission’s site walk. DiCamillo asked if it was a completed plan. The commission reviewed and discussed the revised plan in detail.
Sabine O’Donnell made a motion to approve the application as submitted on the June 27th, 2011 plan. Linda Krulikowski seconded the motion. The motion passed. Bechtel abstained.
Linde thanked all the members for their input, opinions and participation.
Respectfully submitted,
Kim Groves
Land Use Administrator
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