TOWN OF SOUTH WINDSOR
INLAND WETLANDS/CONSERVATION COMMISSION
Minutes - 1 - July 11, 2012
MEMBERS PRESENT: Elizabeth Warren, Audrey Delnicki, Hugh Brower, Jack Phillips, Adam Reed, Richard Muller
ALTERNATES PRESENT: none
STAFF PRESENT: Jeff Folger, Environmental Planner
Donna Thompson, Recording Secretary
THE FOLLOWING ARE MOTIONS MADE DURING THE REGULAR MEETING OF THE INLAND WETLANDS AGENCY/ CONSERVATION COMMISSION – MADDEN ROOM
Chairperson Warren called the meeting to order at 7:00 pm
ITEM: OTHER BUSINESS:
Town of South Windsor General Culvert Maintenance - Proposed Activities July 2012 through June 2013
Folger distributed this proposal from the Engineering Department and Street Services for review and, if determined appropriate, receipt of application on July 18, 2012. Folger stated that this summer Public Works will not be doing a lot of street paving and would like to take the opportunity to work on repairing culverts. There are a large number of culverts in need of repair or replacement and this work could be done in-house instead of by hiring contractors. The application will be for a General Permit with very specific criteria that must be met in order to proceed without a formal application presented to the Commission for each repair. Folger and Town Engineer, Jeff Doolittle, will oversee the proposed culvert work and will determine if appropriate for inclusion under the General Permit.
Phillips stated that it is a good idea, but that it must be very specific, have small limits and be reviewed by Folger and/or the Commission as needed.
Muller suggested that a report be provided upon completion of each culvert so that the effect on the wetlands could be monitored.
Warren stated that when it has been determined there is more involved than covered by the General Permit, an application must be submitted to the Commission and current procedures followed.
ITEM: PUBLIC HEARING: 7:15
Folger presented a Request for Intervener Status from Jeremy Baver which he received on July 11, 2012.
Commissioner Phillips noted that there was a typographical error on the form indicating Mr. Baver was a she not a he, but the Commission determined the document was acceptable as executed.
Motion to: accept the Verified Pleading for Intervener Status for Jeremy E. Baver.
Was made by: Commissioner Phillips
Seconded by: Commissioner Brower
The motion carried and the vote was unanimous
Mr. Baver stated that he had not had an opportunity to review all the documentation for this application, was uncomfortable with going ahead with the application for this reason and would like the public hearing continued to another date so he could obtain and thoroughly review all the documents.
Commissioner Brower made a point of order that since the applicants were prepared to present testimony at this time, it would be in the interest of the Commission to accept whatever testimony the applicant has and upon completion of their testimony, the intervener can present testimony or question the applicant, but the decision to continue the public hearing to another meeting should not be made prior to the presentation of testimony.
Mr. Baver had issue with the late submission of some documents and not having ample opportunity to review them and would like the public hearing continued to a later date so that he would be better prepared.
Commissioner Phillips made a point of order that the decision to continue the public hearing could not be made prior to concluding whatever business was to be completed tonight. At the end of this meeting, if necessary, the public hearing could be continued to the next meeting.
Appl. #12-28P – Nutmeg Village – 388 & 428 Pleasant Valley Road, 100 South Satellite Road – Inland Wetland/Conservation Commission application for the construction of a 155 unit multi-family development and associated improvements on property located northerly of Pleasant Valley Rd and southerly of South Satellite Rd. Multi-Family (MF) Zone, A-20 Residential Zone, Industrial Zone.
Representing the applicant: Attorney Ralph Alexander; Peter DeMallie, Andrew Krar and Ben Wheeler of Design Professionals; Fred Johnson and Kim Bradley from GEI.
Attorney Alexander addressed legalities of the intervener petition received by the Commission. He explained that the intervener petition expands the findings the Commission has to make to include determining if the proposed development falls under Connecticut General Statutes, Section 22a-19, “involve conduct reasonably likely to have the effect of unreasonably polluting, impairing or destroying the public trust in the air, water, or other natural resources of the state”.
Mr. DeMallie submitted a signed document from Francis and Jeannine LaCapra, 442 Pleasant Valley Road, giving their permission to the applicant to dredge the pond that is partially on their property as discussed at the last meeting. Applicant will bear the cost of this clean-up.
Mr. DeMallie stated that the Fire Chief and the Police Chief are requiring a second entrance/exit into the development for emergency access. The original location was proposed to be easterly of lot #3 which would put it within 10 feet of a regulated wetland. The new plan shows the location moved to westerly of lot #1. The emergency access roadway consists of a processed stone base 18 feet in width, overlaid by loam and then grass. The new location would put the emergency access 38 feet from the closest wetland. The Town Engineer is requiring that the sidewalk near the bridge be moved further away from the curb toward the wetlands to provide a snow shelf. They have achieved a design that has no direct impact on the wetlands.
Mr. Johnson, Senior Vice President at GEI Consultants, reviewed the proposed drainage as it relates to its potential impact to nearby wetlands. There were four sets of drainage features that were of concern: the drainage underneath the road on the eastern side of the site; 2 sets of footer drains on the residential buildings; and a drainage pond being constructed. Determined there is no issue with the drainage under the road or the footer drains based on the radius of influence calculations. The pond was the only potential area of concern. There was not good water level information for the wetland that is near the pond. Conservative calculations show in theory that the wetland could be within the radius of influence in extreme conditions. Mitigation has already been proposed should this ultimately be the
case.
Commissioner Brower had some ground water questions that were addressed by Mr. Johnson, Mr. Krar and Ms. Bradley.
Mr. Krar addressed the three issues presented in a letter from Mr. Baver dated July 11, 2012. The design of the stormwater system and erosion controls was, in his professional opinion, done in accordance with the guidelines set forth in the DEEP Stormwater Quality Manual, the Town of South Windsor's Public Improvement Specifications and the DEEP Erosion Control Manual. In response to Mr. Baver's concern that the proposed development is reasonably likely to impair and harm the Podunk River, Mr. Krar stated that he disagreed with that statement and that there was no evidence or detail provided in the letter. The second point addressed in the letter was that it is reasonably likely that alteration, relocation and/or diversion of wetlands on the site would impair flow of the tributary watercourse and the Podunk River itself,
and may lead to unreasonable pollution. Mr. Krar disagreed with this statement also. The third point was that Mr. Baver believes it is reasonably likely that runoff from the proposed development will hasten the erosion of existing properties. Mr. Krar disagreed with that statement as well. The design is in accordance with the guidelines set forth in the above mentioned documents. Mr. Krar re-iterated that it is in his professional opinion that he took exception to the points in Mr. Baver’s letter.
Commissioner Brower questioned whether the improvements to the underground drainage in the area adjacent to Hilton Drive would affect the overall ground water level in the area. Mr. Krar stated that if there is any ground water flowing easterly from the site and is going easterly into Hilton Drive properties, it will be intercepted to a depth of five to eight feet. That might be a benefit to those neighbors. Mr. DeMallie stated that PZC directed them to meet with the neighbors on Hilton Drive because they have outstanding drainage issues, surface and ground water drainage issues and infrastructural issues within their subdivision. All the Hilton Drive abutters were invited to the meeting and Mr. Krar reviewed his proposed plan to help alleviate their existing situation. The plan would reduce the surface flows
onto their property by re-grading it in the easterly area and with the underdrain system on the easterly side discharging to the south into the major detention basin.
Commissioner Brower asked, hypothetically, if the drainage system was not put in on the eastern side, would that then justify reducing the size of the detention basin. Mr. Krar’s answer was no.
Mr. DeMallie stated that their formal presentation has been completed, they are available for questions and reserve the right for rebuttal prior to the conclusion of this hearing.
Mr. Folger stated that the Town Engineer has not yet reviewed the report from GEI. Folger said that, in his opinion, based on the information provided, the statements made by Fred Johnson would be correct. Folger felt that the proximity of the detention basin to the two small wetlands on the southeast side of the property could pose a problem with depleting those areas of ground water. As Mr. Johnson said, their assumption was that the water was at the surface. As far as the statutory requirement for a wetland is concerned, if the water were subsurface and if the water table underneath those wetlands dropped below 20 inches, which is the statutory depth for a seasonal high water table, then that would cause an impact to that wetland, possibly de-watering it and causing a reduction in the hydrophilic vegetation.
It would still function as a ground water re-charge. Any surface flow containing pollutants could still be assimilated through both the plant community and the soil. Folger re-affirmed that he agreed with the report.
Mr. Folger asked if some of the impervious surfaces on the site, either houses or roads, were reduced would that affect the surface area of the detention basin. For feasible and prudent alternatives, is there a way to reduce the surface area of the detention basin to an extent where it would not affect the wetlands adjacent to it? Mr. Krar stated that because it is such a flat site, the depth or storage of the pond is very shallow. The design and size of the pond conforms to the standards required. If you removed a large number of units or an entire road, the size of the proposed detention pond would certainly decrease. It would depend on how much the reduction was as to whether the size of the pond could be adjusted.
Commissioner Brower asked if more than one pond or a different location for this pond had been considered. Mr. Krar stated that the location of the pond is at the lowest part of the site. Placing the pond there was necessary. In considering additional ponds upgradient to this pond, two raingardens have been proposed that act as temporary ponds. They found that placing a pond in another location would have required a substantial amount of fill – 3 or 4 additional feet throughout the west end. A pond on the west side of the site would be at a high elevation and require a great deal of fill. It was considered but is not feasible.
Commissioner Phillips questioned whether a combination of planting and seeding would be better than seeding alone in the mitigation area, allowing a quicker establishment of a more mature wetlands. Phillips also asked if there were detailed plans available for invasive species maintenance and the maintenance of the edge areas around the units and around the wetlands. Mr. Wheeler stated that plant material supplemented with the seed mix will help establish a wetlands quicker. However, in this case because it is a phase development over multiple years, if the mitigation is done in the initial phase of the development, the New England Wet Mix that tends to establish itself into a fairly mature planting within the second growing season. Mr. Wheeler stated that there are not specific details on invasive species
control, but can provide it and will be working with town staff to ensure that the invasive species control is done at the appropriate locations. Mr. Folger stated that anything other than a wet meadow would benefit from supplemental plantings. Ms. Bradley stated that the created wetland is intended to be a wet meadow and that a mitigation plan can be provided. The invasives plan will be developed as the time for mitigation approaches. Mr. Wheeler stated that the mitigation area is envisioned to be a wet meadow; to be mowed once every two years to offer a diversity of the type of wetlands that exist on site. This type of maintenance will prevent the woody growth that appears elsewhere on the site.
Commissioner Brower asked Attorney Alexander his opinion of the response received from the Town Attorney regarding the question about a prudent and feasible alternative being rejected by the PZC prior to this application coming to IWA. The question was, could IWA consider a prudent and feasible alternative to be access to the development off South Satellite Road, knowing that PZC had already refused it? The Town Attorney indicated that though it may be a prudent alternative, it is no longer a feasible one as the applicant could not possibly get approval to construct that access. Attorney Alexander agreed with the Town Attorney’s conclusion. Commissioner Phillips stated that the Town Attorney’s opinion did not address the “consistent with sound engineering principles” requirement when
determining that access to South Satellite Road was not feasible. Phillips felt that the decision from PZC was not necessarily made based on engineering principles, though a number of other factors went into it. This commission being able to look at alternatives is not determined by the requirements of a different commission, especially in this case where it is the applicant that requested the zoning change. It wasn’t coming into an existing zone and obviously, coming in off of South Satellite was an acceptable, matter of fact, would have been a required, condition if this had been developed as the original zoning instead of being changed in zoning. Prior to determining whether this commission can or cannot do it, he requested the DEEP be queried as to whether the changes made by PZC have precedence over the requirements of the Inland Wetlands and Watercourses Act. Attorney Alexander stated that it was determined that access to South Satellite
was a safety issue, school buses and children in an industrial zone was not acceptable. Another reason for the denial to South Satellite was that the noise levels from the industrial zone into the residential zone across the street would be above the Town Ordinance. The choice of location for the access to the development was not just an environmental question, it was a broader question. The applicant, at the suggestion of PZC, made the access, where it was available to Pleasant Valley Road. It was a balancing of all the issues – best practices of environmental, general development, traffic. It’s not that it’s the only way, but it balances all the options. Phillips is concerned that a South Satellite Road access will not be available to the commission during deliberations – that it can no longer be considered an option. Phillips does not feel it is correct that because PZC has already considered that option and
ruled, IWA no longer has that option for prudent and feasible alternatives. IWA may come to the same conclusion as PZC or not, but because PZC came to a conclusion doesn’t eliminate it from IWA’s consideration of that option as one of the potentially prudent and feasible alternatives. Attorney Alexander stated that he thought Phillips was correct, that PZC is awaiting IWA’s decision, that IWA is in the first position in that regard and that the applicant is trying to accommodate everyone. Mr. DeMallie stated that based on the current zoning map, the Nutmeg Village Development can only be serviced (with IWA’s approval) from Pleasant Valley Road. The developer is not allowed to put the development’s roads through an industrial zone to get to South Satellite. That is illegal. It is prohibited. The road can only be through a residential zone. Without the stream crossing the majority of the fifty
residential acres would be undevelopable. You could not get access to it – a major consideration. Commissioner Brower assumed that it potentially would be possible to go to PZC or ZBA to request a change for a particular project. Attorney Alexander stated that the statutes all deal with “feasible”. PZC made it very clear that the access was not to go out to South Satellite. The Commissioners did not want a bus stop on that street and the Chief of Police was against having any exit from a residential development out to an industrial complex. It might be possible to do it, but as a matter of feasibility would not be able to do it. Brower then asked if Hilton Drive had been considered for access through a residential area. Attorney Alexander responded that Mr. Urso had considered all the alternates – Hilton is a fully developed area. Nutmeg Road is to be used for the emergency access. Brower stated
that parcels were acquired on Pleasant Valley Road for the purpose of access, and that it’s possible the applicant could have looked for a way to get out to Hilton Drive as an access way. Attorney Alexander stated that possible is not in the statutes, it’s reasonable, feasible alternatives. Using Pleasant Valley Road for access is the most feasible location given all the issues. Commission Warren stated that she agrees with the Town Attorney’s finding based on the fact that obviously PZC will not permit the alternate access, that it is not able to be constructed or implemented. Though unhappy that PZC and IWA are of differing opinions on this issue, Warren feels that the concerns of both PZC and IWA are justified. Warren feels that in the long run both can be satisfied, but the Town Attorney clearly states that PZC has closed the door on South Satellite as an option. Mr. DeMallie stated that multi-family zoning regulations
require a minimum two hundred feet of frontage. To get the required frontage off of another surrounding street they would have to meet many regulatory requirements. In addition to buying enough land for the roadway, it would take more than one lot on Hilton Drive - which are all fully developed. The cost does not make it prudent and feasible as an alternative. Commissioner Phillip stated he doesn't believe that in all cases just because PZC writes a rule IWA has to accept that rule. This is the correct answer from an Inland Wetlands point of view. In answer to Commissioner Brower's question about trenching any utilities under the watercourse, Mr. Krar stated that at this time a three to four inch sanitary force main is the only utility expected to be bored through under the watercourse.
Commission Phillips stated that the petitioner should now make his presentation.
As an Intervener, Jeremy Baver then had the opportunity to state his case alleging that the Nutmeg Village Development would, pursuant to Connecticut General Statutes, Section 22a-19, “involve conduct reasonably likely to have the effect of unreasonably polluting, impairing or destroying the public trust in the air, water, or other natural resources of the state” - in this case, the Podunk River. Mr. Baver stated it had been mentioned that his intervener status was for purposes of delay. Mr. Baver said that no attempt to develop this property had not been made in over forty years and a few more weeks would not harm anybody; that this development would cause a permanent change to the wetlands and all due time should be afforded to allow the proper review of any and all issues. Mr. Baver clarified that his
letter to intervene was not intended to limit his concerns or issues in any way. Mr. Baver referred to the Storm Drainage Report dated May 5, 2012. His concern was with the effect of runoff on the property located at 389 Pleasant Valley Road - across the street from the proposed development and the proposed access road. The report shows that the peak rate of stormwater discharge and runoff volume are significantly increased due to this development. The information states that with the exception of Pleasant Valley Road peak discharge rates from the developed site to adjacent properties is less under post-developed conditions as compared to pre-developed conditions. As the applicant's figures show, there is a substantial increase in the runoff rates - almost eleven times. Mr. Baver obtained information through the UCONN website showing an area directly behind the property located at 389 Pleasant Valley Road highly susceptible to erosion. From
the area of Pleasant Valley Road to this area identified on the map as being a highly susceptible to erosion area it is a constant grade straight down to the bank. The bank drops approximately twenty feet down and slowly encroaches on the 389 Pleasant Valley Road property year by year. The eleven fold increase in stormwater runoff due to the development of the proposed site is going to significantly increase the rate of erosion. This concern, which has not been addressed, needs to be addressed.
Mr. Baver then referred to the Groundwater Evaluation letter from Fred Johnson dated July 9, 2012. Mr. Baver felt that there was uncertainty in the report as to what the groundwater level was and dependent upon what the level was, it would change Mr. Johnson's recommendations. Mr. Johnson explained that a very conservative approach was used by assuming the surface of the water is at the top of the wetland, at the ground surface. One of the recommendations was to take a water level reading in that wetland area to verify that assumption. Mr. Johnson does not believe the water level is that high, but without solid evidence, the worst case scenario is assumed. This scenario shows a theoretical encroachment on that wetland of approximately ten feet based on the radius of influence. If this is the case, the
recommendation would be to monitor the wetland and utilize the proposed mitigation plan for wetland reconstruction elsewhere on site as is somewhat anticipated if the pond impacts the wetland. The mitigation would be more than enough to compensate for both if necessary. Mr. Baver questioned if there is a possibility that the pond might have some overflow. Mr. Johnson stated that is correct. There is an overflow pipe at the south end of the pond with an elevation that will be fixed and the highest level of the pond will be controlled at the bottom of that pipe. It's a high level overflow - only if the water reaches a certain height. Mr. Baver questioned whether there had been a study of vernal pool activity on the site. Ms. Bradley stated that there had not been a direct vernal pool study done but conditions on the site have been reviewed at various times of the year. The northwest wetland has not had any surface water at any of the
times visited, it serves as a wet meadow. The water is at a point where it supports vegetation but not necessarily amphibian growth - not a vernal pool.
Mr. Baver asked if any permits were sought from the DEEP. Ms. Bradley stated that in terms of natural resources they submitted the NDDB request at the request of the Town's Conservation Officer. This is the one application submitted. Mr. Baver asked if this application had been approved. Ms. Bradley stated that it is not a permit but they are in correspondence with DEEP and their contact is Jennifer Dixon, along with specific experts pertaining to the different species on site. Mr. Krar stated that prior to construction they will have to apply for the general permit through DEEP for site disturbance of ten or more acres due to construction activity. This permit mostly deals with erosion control measures during construction. Commissioner Phillips stated that IWA standard conditions require that all
additional permits must be properly obtained prior to starting activity on the site and prior to IWA permit being valid. Phillips did not see that this line of questioning was indicative of the project causing "unreasonable harm" to the environment. Mr. Baver stated that he has not reached that point yet. Mr. Baver had spoken with Ms. Dixon about the environmental impact study done in 2010 and was told that generally these studies kind of get stale after a year. Mr. Baver has not seen documentation showing any follow-up with the DEEP since that time 2010 report other than statements made. Mr. Baver would like to see more hard evidence of recent correspondence to show DEEP's opinion at this time. Phillips asked if Mr. Baver intended to present to the Commission what the DEEP concerns were so that they could be factored into the Commission's judgment as to whether they might cause unreasonable polluting, impairing or destroying. Mr.
Baver stated a letter from Julia Victory dated February 16, 2010 had some concerns that have been addressed at the last hearing, but he wants follow up on these concerns. Ms. Bradley indicated her report submitted with the May application has clear written documentation of the current correspondence and interaction with CTDEEP. In December 2011, there was a meeting with the applicant's representatives, Mr. Urso, Chris Davis (Tiger Beetle expert), Jennie Dixon and the Commissioner of CTDEEP. The fish species necessary for the fresh water mussels are upgradient of the site and due to sediment controls will not be potentially impacted by the site. The Barrette sedge and Tiger Beetle sites have been visited and they are actively involved with and coordinating with DEEP. Mr. Baver stated that he would like to see the applicable emails Ms. Bradley has showing her correspondence with DEEP and to be provided with the substance of the conversations
concerning this matter. Mr. Baver stated that it seems this is going on behind the scenes and would like the public to have this information to review. Commissioner Warren asked if Mr. Baver had a copy of the report. Mr. Baver stated he did, but that all he sees is a hearsay statement and would like to see a resubmittal of a letter from DEEP stating its position. Commissioner Phillips stated that they have presented experts testifying to this. As a petitioner, Baver has the right to present expert testimony to refute that. The applicant has provided experts. It is not the applicant's job to provide Baver's documentation and experts. Mr. Baver felt as a member of the public he has the right to ask questions and rely on the same evidence. Phillips stated that Baver is currently speaking as a petitioner. If he speaks as a member of the public, he can ask the question and it is up to the Commission to decide if it is necessary
to get additional information or if it has been properly covered. Commissioner Brower asked Mr. Baver if there was a particular action he wanted the Commission to take at this point, and also if he had any evidence that feasible and prudent alternatives exist to what has been proposed. Mr. Baver responded that his position currently is that the application should be denied. Baver stated that he will get to the feasible alternatives after getting through some points. Mr. Baver stated that he raised the point about permits required by DEEP because he does not have the resources to hire experts, but the State does. Baver said he knows there are competing interests when talking about the jurisdiction of the Commission versus the jurisdiction of the State, and one does not necessarily overlap the other. But the State could be a huge resource and in his opinion, in no way to diminish the Commission or town staff, it could be valuable in
determining this application. If we look at some of the more advanced studies that are done, permits that are needed, he believes that another stormwater discharge permit is needed. Commissioner Phillips stated that permits in the jurisdiction of another agency are outside the purview and legal authority of this Commission. Mr. Baver was not asking this Commissioner to do the permits, but to withhold judgment and its decision until the permit process is completed. Baver stated he was just making a suggestion. Mr. Baver then questioned how the amount of the watercourse to be altered, 195 lineal feet, was calculated. Mr. Wheeler stated that 70 lineal feet of disturbance is associated with the bridge crossing, and 125 lineal feet of disturbance is associated with stream bank stabilization. The bridge crossing disturbance is an approximation, the stream bank stabilization was determined by Mr. Wheeler and Mr. Krar walking the length of the
channel to identify the areas and length of stabilization they felt was necessary. Mr. Baver questioned if the change regarding the placement of the sidewalk would change the calculations. Mr. Wheeler stated no, the sidewalk is contained within the bridge crossing and is therefore accounted for in the calculations. Mr. Baver was concerned that the amount of disturbance calculated is very close to the 200 lineal feet that would require the Army Corp of Engineers becoming involved - a miscalculation of five feet could be meaningful. Commissioner Phillip asked in what way is crossing a 200 foot limit, other than requiring an Army Corps permit, reasonably likely to cause unreasonable harm. Again, in IWA standard conditions there are requirements that all necessary permits are obtained. Whether it is 190 feet or 205 feet in what way would that cause unnecessary or unreasonable harm? Mr. Baver stated that he would leave that to the Army Corps of
Engineers. Baver said it is just something he wanted on the record for consideration. Phillips said, again, that whether the applicant has to go for an Army Corps permit is not in this Commission's purview or legal responsibility.
Mr. Baver asked Commissioner Brower if he had observed any finned wildlife during his site visits. Brower stated that he saw frogs but not fish and did not feel the stream was deep enough in most places to support fish. Baver stated that he had seen fish in the stormwater detention basins in the industrial sites off Nutmeg and South Satellite and felt that they could escape into the stream to travel down to the Podunk River. Mr. Baver expressed concern for the fresh water mussels in the Podunk River. Baver felt that because the mussels get substance for their survival from filtering the water, some of the environmental impacts from upstream could be detrimental to them. Commissioner Phillips asked if Mr. Baver had evidence of these mussels being in this area. Mr. Baver referred to the DEP letter dated
February 16, 2010, which indicated that changes caused by the develop could have an affect on fresh water mussels. Phillips asked if Baver had any evidence that the DEP's conditions were not being met and once again stated that the Commission has legal responsibilities and techniques to follow. Commissioner Brower stated that the applicant has proposed several measures, such as stream bank stabilization, to address these concerns. Baver still feels that updated information is needed from the state. Commissioner Warren stated that the applicant has addressed the updating of reports from DEEP. Warren also questioned Mr. Baver stating that taking pollutants and siltation out of the watercourse would be harmful to the mussels. Mr. Baver would have to provide valid scientific evidence of this as it goes against all previously determined principles. Ms. Bradley stated that they have demonstrated that the habitat on site is not supportive of these
fresh water mussels and that measures are proposed to prevent siltation into the Podunk.
Mr. Baver felt the legal opinion from the Town Attorney regarding the prudent and feasible question of South Satellite Road was incomplete and did not fully address the issue. Baver agreed with Commissioner Phillips that it ignored the sound engineering principles aspect of the regulation. Baver would like further review of the issue, either by the state or the Town Attorney. Baver stated that there are three issues involved with prudent and feasible alternatives: 1) the question of South Satellite; 2) Hilton Drive was not attempted;
At 9:58 pm -
Motion to: extend the meeting past the 10:00 pm deadline to 10:30 pm
was made by: Commissioner Phillips
seconded by: Commissioner Brower
The motion carried and the vote was unanimous.
Mr. Baver continued by providing a definition of prudent alternative. Commissioner Phillips again asked in what way this is leading toward showing an unreasonable harm o the environment. Baver stated that any type of disturbance to inlands and wetlands is a harm. Phillips said the statute does not state any harm, but states unreasonable harm. Baver feels that crossing a waterway is unreasonable when there is a prudent and feasible alternative, which is to not cross the waterway. Mr. Baver final point for prudent and feasible alternatives was in regard to the reduction of the number of units. Baver stated that the applicant admitted that a reduction in the units would reduce the wetland impact by reducing the size of the detention pond. Baver felt he did not have to present any evidence regarding this
statement as it has already been presented to the Commission by the applicant’s own testimony. Reduce the units, reduce the pond, reduce the wetland impact – prudent and feasible alternative. A specific site plan should be presented to the Commission showing a reduction in the number of units, or impervious area, and will show that the detention basin has been reduced. Baver stated that this was a concern Mr. Folger brought up in his memo also and it has not been addressed by the applicant. Baver stated that using mitigation to compensate for impinging on wetlands should be the last choice, not a first choice, when there is a prudent and feasible alternative – reduction in the size of the project. Baver stated that it seems like this is all about making more money by building a larger development. Commissioner Phillips again asked in what way this is providing unreasonable harm. Mr. Baver said that any harm to the
environment is unreasonable. Phillips said that was Baver’s personal opinion and not necessarily going to be the ruling of the Commission. The statute states unreasonable harm specifically, not any harm. Mr. Baver stated that any harm to the environment is unreasonable if there’s an alternative that is feasible and prudent.
When Chairperson Warren asked if Mr. Baver was finished with his presentation, he responded that he was, but wanted to renew his request to continue the public hearing based upon the fact that he has not been able to review all the evidence due to the late submission of some of the documents. Commissioner Brower said the Commission would take Baver’s request under advisement.
Resident, Roger Merrill, 109 Hilton Drive, was concerned that the changes to the area by the development would require a larger culvert underneath Hilton Drive in order to handle increased runoff. Mr. Krar stated that the peak flow of runoff from the site was expected to be reduced, so would not require the culvert be made larger. The Town Engineer, Jeff Doolittle, has reviewed the drainage calculations and found no exceptions. Mr. Krar then addressed Mr. Baver’s concern about Pleasant Valley Road by stating that the additional flow off the site does not cross the street onto 389 Pleasant Valley Road. The extra drainage enters Pleasant Valley Road and stays on the development side of the road. In a discussion with Jeff Doolittle, Mr. Krar was asked to do something about the small increase in runoff.
To accommodate this request, Mr. Krar changed the high point of the driveway to be approximately 35 feet closer to Pleasant Valley Road, which would make a substantial difference. Some of the numbers will change, but the plans the Commission has reflect all the proposed physical changes and the Town Engineer has no exception to these changes. Mr. Krar said these changes address PZC comments and they will revise the report accordingly if required. Commissioner Muller stated that it is such a small number it shouldn’t matter anyway. Muller sited a previous instance where a developer had to cross a drainage ditch and there was no issues with doing that. There was mitigation because of crossing the ditch, and there was no feasible and prudent way of not crossing it and be able to develop the property. The property owner has a right to develop their property to some level. In an extreme case, maybe not, but that’s where
feasible enters into it. Reducing the size of a development could make it economically unfeasible. IWA is responsible for making sure applicants proceed in the best possible way from a wetlands point of view. Mr. Folger stated that one of the purposes for determining the functions and values of wetlands is to determine what the impacts might be on it. This watercourse has minimal potential of supporting any kind of aquatic life.
Mr. Baver stated that he took offense at Commissioner Muller’s comment that a land owner should just be given the right to develop. Baver stated that there’s more involved than that – the affects on the land, environment and species. There would not be an IWA if the right to develop was automatic. Muller stated that within the regulations a landowner has the right to develop his property. IWA and property owner working toward the best solution – what is feasible. Baver stated that he is not saying there should be no development. He is trying to enforce the rules and regulations, and the law, as is his right and obligation to do. Chairperson Warren emphasized to Mr. Baver that the Commission always does due diligence and works within the rules and regulations, and that he was
out of line to imply differently. Warren suggested that the discussion be ended at this point. Mr. Baver apologized for causing any offense, and stated the Commission and Mr. Folger are doing a wonderful job. Baver said he is coming from a different perspective and may step over of line a bit, which was not his intent. He did not mean to make any implications or disparage the Commission. Mr. Baver had nothing further to add regarding the application.
Peter DeMallie stated that the applicant’s presentation was complete and requested that the Commission consider closing the public hearing.
By consensus of the Commission, the public hearing for appl. #12-28P will be continued to July 18, 2012.
ITEM: ADJOURNMENT:
Motion to: adjourn the meeting at 10:23 pm
Was made by: Commissioner Brower
Seconded by: Commissioner Reed
The motion carried and the vote was unanimous.
Respectfully submitted,
Donna Thompson
Recording Secretary
Approved: September 19, 2012
| 
