TOWN OF SOUTH WINDSOR
INLAND WETLANDS/CONSERVATION COMMISSION
Minutes - 1 - July 18, 2012
MEMBERS PRESENT: Elizabeth Warren, Audrey Delnicki, Hugh Brower, Jack Phillips, Adam Reed, Richard Muller, Barbara Kelly, Carol Heffler
ALTERNATES PRESENT: Vicki Paliulis (arrived after 7:30 pm)
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
PUBLIC PARTICIPATION: none
PERMIT EXTENSIONS: none
CORRESPONDENCE AND REPORTS: none
BONDS: none
MINUTES: none
CONSERVATION COMMISSION:
Folger reported that trails continue to be worked on including the woodchip trail across the Priest Property.
WETLAND OFFICER’S REPORT:
Folger reviewed the circumstances regarding a warning notice issued to RSK-Kellco on property located at the corner of Deming and Buckland. A temporary 30 inch pipe placed inside the concrete culvert used to protect the wetlands during construction of an access drive. During the heavy rain on July 4th weekend, the receiving end of the pipe floated, creating a dam and preventing any water from entering the pipe. The water poured over into the detention basin and into the road. The Town crews fixed the problem fairly quickly, but there was a lot of material deposited in the road. Within two days the problem was solved and the site is stable. Ultimately, the sumps will be pumped out into the street. The two rain storms since that time have caused no problems.
Folger discussed a minimal impact permit for Carla’s Pasta. The Commission had previously approved the application for an extension of the parking lot and stormwater management system. The legal notice had never been issued for this approval. They needed to close on the funding for this project and needed proof of the Commission's approval for the project. This proof of approval was need quickly. Since the project was outside of the wetlands and upland review area and had already been approved previously by the Commission, Folger issued the minimal impact permit so they could have legal proof of the approval. The Commission felt this was a good way to handle the issue.
Commissioner Brower requested that copies of minimal impact approvals be forwarded to the Commissioners when issued.
PUBLIC HEARING: 7:15
Commissioner Phillips proposed to have applicant make their presentation first, then have questions, then have intervener make his presentation, then have questions, then have the rebuttal. This proposal was acceptable to all participants and commissioners.
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 and Attorney Harold Cummings; Peter DeMallie, Andrew Krar and Ben Wheeler of Design Professionals; Fred Johnson and Kim Bradley from GEI.
Mr. Johnson reviewed the revised drainage report from GEI. Mr. Krar addressed a minor design change as discussed with the Town Engineer and the Fire Marshal regarding the emergency access road. Mr. Wheeler clarified that a specified native meadow mix will be utilized in the outlying areas of the site, 10 feet outside of the walking trail throughout the site, and where there is no walking trail, 80 feet behind the units.
After presentation of data in support of the application, Commissioners and members of the public had questions and comments, which were addressed by the appropriate individuals.
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 resource of the state”. Mr. Baver had additional evidence to present, including letter from Mr. Paul Szymanski, an engineer, in support of his opposition to the Nutmeg Village Development. Mr. Szymanski's letter was used as expert testimony for Mr. Baver's opposition to the project. Commissioners questioned the feasibility of not having the expert available at the meeting should questions arise. Mr. Baver stated that he would pass any questions along to Mr.
Szymanski and forward his answers to the Commissioners. Attorney Cummings stated that he felt it would be appropriate for the report to be submitted in evidence. Commissioner Heffler clarified that she did not have a problem with accepting the report, but that if there were questions regarding the report, Mr. Baver would not be qualified to answer those questions. Mr. Baver stated that if the Commission approves the application, he is requesting that it be stated the weight of the consideration given to his expert's evidence was less than that given to the applicant's based on the fact that his expert was not at the meeting. Commissioner Phillips stated that everything presented to the Commission will be weighed in making a determination. It does not mean any one thing would be said to be of greater import than another. The decision is based on the evidence as a whole, as it was presented. Commissioners had questions and
comments regarding the evidence as stated in Mr. Szymanski's letter. Mr. Baver reviewed his intervener summary report by first stating that at the last meeting there seemed to be an intent by Commissioner Phillips especially to possibly limit his testimony and evidence due to his intervener status and that it might be given less weight when making a decision because of his intervener status. Chairperson Warren indicated that she found Mr. Baver's statement about Commissioner Phillips unacceptable. Commissioner Phillips stated that the intervener statute states the "unreasonable harm". That is why Commissioner Phillips questioned Mr. Baver's comments by asking "in what way is that going to cause unreasonable harm?" Commissioner Phillips did not see a direct connection to Mr. Baver's comment and a cause of unreasonable harm. Mr. Baver then stated that the applicant refused access to the property to Mr. Baver and his expert for a
site walk. Mr. Baver's next point was directed to Commissioner Muller, stating that at the last meeting Commissioner Muller made statements that could possibly show a bias in terms of his viewpoint and decision making. Mr. Baver believes that it could effect the decision making process and asked the Commission to consider a motion that would seat an alternate in Commissioner Muller's place to consider and vote on the application. Chairperson Warren refused the request stating that she was unaware as to what those comments were, that there was not an alternate present that had been seated at the previous meetings and asked what specifically Mr. Baver was referring to. Mr. Baver stated that there was a comment at the end of the last meeting, but he cannot be specific as there is not a transcript available and he doesn't want to misstate the comment. Chairperson Warren stated that without more specific information, the question is out of line.
Commissioner Brower stated that it is up to the individual Commissioner to determine if they should recuse themselves. Mr. Baver then addressed the issues of prudent and feasible alternatives. Mr. Baver presented evidence to show possible prudent and feasible alternatives. Mr. Baver felt that the applicant should have and could have presented alternative plans - an access drive to the north or access from the east. Commissioners questioned if there were wetlands on the properties to the east and stated that as an alternative an applicant should not have to buy property - they already have the property they want to develop. Mr. Baver stated that they should have considered it. Mr. Baver presented affidavits from some of the homeowners on Hilton Drive (properties to the east of the proposed development) stating that the applicant never approached them about purchasing their land. Mr. Baver's third prudent and feasible alternative was a
reduction in the number of units in the development. Mr. Baver stated that a reduction in the number of units would reduce the runoff and thus reduce the size of the detention basin, which would reduce the effect on the wetlands around it. Attorney Cummings objected to Mr. Baver using the term “my expert told me". Attorney Cummings stated that if it is not in the engineer's report everything he is saying is pure hearsay and is not something that can be addressed. Attorney Cummings protested any statement about what the engineer told him that is not in that letter. Commissioners asked what proof Mr. Baver's expert provides in his report that the applicant's proposed plan will cause harm or affect the groundwater. The suggestions from the DEEP are guidelines, not requirements. Mr. Baver stated that he has presented his evidence and that the application has faults - doesn't meet the rule of law, haven't met minimum standards or
minimum burden to show any prudent and feasible alternatives. The Commission should deny the application.
Roger Merrill, 109 Hilton Drive, asked “where the water comes out of the detention pond at what elevation does it come out at? At what elevation is the pipe running down the side of Hilton Drive?” Mr. Krar stated it is about 57.3 and the pipe is above it (60.5) - it flows into the pond.
Chairperson Warren read into the record a letter from Liz Pendleton, 319 Hilton Drive, in opposition to the proposed development. Some of the points in Ms. Pendleton letter were not Inland Wetlands issues.
Attorney Cummings addressed comments from the intervener. Cummings stated that the Commission first has to make a specific finding that there will be an activity that is reasonably likely to unreasonably pollute or destroy the wetlands. If the Commission so finds, then proceed to prudent and feasible alternatives. Determination must be made based on expert evidence. Burden is on intervener to make the case. If deny the application, must state in decision what that evidence of unreasonable harm was. Attorney Cummings asked if there is substantial expert evidence before the Commission that indicates that it is reasonably likely that there will be an unreasonable impact. It doesn't show in the intervener's information what the unreasonable harm would be.
Attorney Alexander, Mr. DeMallie and Mr. Krar addressed issues, comments, questions and concerns from the Commissioners and responded to comments presented in Mr. Baver's presentation.
Mr. Baver commented on the lack of prudent and feasible alternatives presented to the Commission, stated there was unsubstantiated information provided, and in regard to DEEP standards for post development stormwater drainage runoff - the increases that were mentioned by the applicant shouldn't happen, there should be a reduction not even a slight increase.
Folger mentioned that in the regulations when there is a public hearing there is a requirement to show feasible and prudent alternatives whether they're assumed to be there or not. Folger also stated that in a development of this size he cautions each applicant that the possibility of a reduction in the number of units may be required and should be addressed.
Commissioners Kelly, Phillips, Blondin, Brower and Warren had previously visited the proposed site.
Motion to: close the public hearing on application #12-28P at 9:41pm
Was made by: Commissioner Heffler
Seconded by: Commissioner Brower
The motion carried and the vote was Warren, Phillips, Kelly, Blondin, Brower, Delnicki, Reed, Heffler: Yes; Muller: recused himself from this and all votes on appl. #12-28P.
Commissioner Phillips proposed going on to the next application (#12-31W) due to the time. The Commissioners were in agreement.
NEW BUSINESS
Appl. #12-31W – Michaelson Residence – Pierce Rd – Inland Wetland/Conservation Commission application for the creation of a single family house lot and site plan. Located westerly of Pierce Rd. Rural Residential (RR) Zone.
Andrew Krar, Design Professionals, and John Ianni, Highland Soil, presented the application. Mr. Krar stated that the proposed position of the house on the property has been changed – moved farther to the north, and is reflected in revised plans. This change was based on a recommendation from Jeff Folger. Mr. Ianni stated that the flagging of the wetlands was done in 2005 and the flags are not permanent. Mr. Ianni reviewed his report for the Commissioners. The pond area and the breeding area of the wood frogs are off site of the subject property.
Motion to: extend meeting for ½ hour in order to continue discussion and possibly act on appl.#12-31W; set a public hearing for appl. #12-36W; and to act upon appl. #12-28P, was made at 9:59 pm; and
Was made by: Commissioner Phillips
Seconded by: Commissioner Blondin
The motion carried and the vote was unanimous.
Commissioner Kelly asked about a conservation easement for a small finger of wetlands at the back of the property. Mr. Ianni recommended a conservation easement be placed on the deed. Mr. Krar said they were not entertaining an easement at this time as the applicant may want to do light farming in the area in the future and there was concern that the easement would prohibit that activity. Mr. Michaelson felt an additional layer of protection should not be necessary to assure that the land be used as allowed under wetland regulations. Chairperson Warren stated that a concern is if the property is sold the new owner might feel they could do whatever they want back there. Warren and Folger stated that there is an agricultural use as of right provision that would cover light farming activities. Commissioner Kelly was concerned that without the easement specifically stating that area as protected, that area could gradually be filled in just as a normal course of homeownership.
Commissioner Phillips suggested the use of a note on the deed regarding wetlands on the site, which has been used in the past to protect the area. Mr. Michaelson would like to use his property as allowed by regulation without the additional restraint of an easement.
Motion to: approve Appl. #12-31W, with the following conditions:
The final approved copy of the entire set of plans and this letter reproduced thereon must be submitted to the Planning Department. This must be completed within 65 days of approval prior to any construction activity on the site. Plans submitted to Planning & Zoning Commission shall be considered having met this requirement.
The application shall indemnify and hold harmless the Town of South Windsor against any liability, which might result from the proposed operation or use.
The permit is valid for five years and shall expire on July 18, 2012. It is the landowner(s)/applicant(s) responsibility to track expiration dates and notify the Commission of a renewal request at least 65 days prior to expiration.
A bond shall be collected in the amount of $3,000 to ensure proper placement and maintenance of erosion and sediment controls.
All approvals required must be obtained and submitted prior to any activity on the site.
A contact person shall be identified on the plans.
A note to be recorded on the deed regarding the placement of the wetlands.
If there will be any activity in the wetlands, an application must be made to the Inland Wetlands Agency prior to any regulated, unregulated or permitted activity.
Was made by: Commissioner Heffler
Seconded by: Commissioner Phillips
The motion carried and the vote was unanimous
APPLICATIONS RECEIVED:
Appl. #12-36W – Town of South Windsor – Road Culvert Maintenance General Permit – IWA/Conservation Commission application for a general permit to repair or replace road culverts as needed within specific guidelines.
Motion to: hold a public hearing on Appl. #12-36W due to potential impact on wetlands & watercourses, and to the potential for public interest
Was made by: Commissioner Phillips
Seconded by: Commissioner Kelly
The motion carried and the vote was unanimous
Motion to: set a special meeting on August 1, 2012 at 7:00 pm for a public hearing on appl. #12-36W and possibly acting on appl. #12-36W
Was made by: Commissioner Phillips
Seconded by: Commissioner Brower
The motion carried and the vote was unanimous
NEW BUSINESS (Con't)
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.
Motion to: move a finding on the intervener’s allegation that as a whole presented the developer's conduct is not likely to cause unreasonable harm.
Was made by: Commissioner Phillips
Seconded by: Commissioner Blondin
The motion carried and the vote was Warren, Phillips, Kelly, Blondin, Brower, Delnicki, Reed, Heffler: Yes; Muller: recused himself
Commissioner Phillips said the statute states “unreasonable” harm and the intervener failed to present evidence that there would be unreasonable harm by this application. Commissioner Heffler was in complete agreement. Chairperson Warren agreed and added that Mr. Baver has been very diligent.
Motion to: move a finding that there was no prudent and feasible alternative consistent with the requirement for public health, safety and welfare.
Was made by: Commissioner Phillips
Seconded by: Commissioner Heffler
The motion carried and the vote was Warren, Phillips, Kelly, Blondin, Delnicki, Reed, Heffler: Yes; Brower: No; Muller: recused himself
Chairperson Warren stated that she did not like that the one prudent and feasible alternative was taken way by the Planning and Zoning Commission (PZC). Commissioner Phillips respectfully commented that it’s just because PZC wrote the rules and will not allow access through South Satellite Road, but agreed
the safety aspect makes it advisable.
Motion to: extend meeting for 5 minutes in order to continue discussion and possibly act on appl. #12-28P was made at 10:29 pm, and
Was made by: Commissioner Delnicki
Seconded by: Commissioner Reed
The motion carried and the vote was Warren, Phillips, Kelly, Blondin, Brower, Delnicki, Reed, Heffler: Yes; Muller: recused himself
Commissioner Brower said wetlands regulations do not cover safety issues, but it is not the guiding force in the decision. The burden is on the applicant to establish no feasible and prudent alternatives. Brower does not feel that the applicant has proven there is no alternative access from the east and the west. Phillips stated that the applicant does not control those properties. Going to the east would be the same bus issue on an industrial property and on the east is wetlands. Folger stated that going to the west would be crossing a watercourse. Heffler stated there is the safety issue of school buses on South Satellite and said it was not prudent to expect the applicant to purchase additional property.
Motion to: extend meeting to 10:55 pm in order to continue discussion and possibly act on appl. #12-28P
Was made by: Commissioner Delnicki
Seconded by: Commissioner Phillips
The motion carried and the vote was Warren, Phillips, Kelly, Blondin, Delnicki, Reed, Heffler, Brower: Yes; Muller: recused himself
Commissioner Brower felt that moving the lighting to the east side of Pepin Place would impact the wetlands less. Folger said in regard to the management of the area adjacent to the Barrette’s sedge, DEEP recommends some of the overstory be removed to let in more light to allow them to go to seed more vigorously. Commissioner Phillips said the applicant did a good job in avoiding or mitigating wetlands, had reduced the number of units originally proposed, repaired watercourse problems, an improvement to the environmental quality of wetlands and watercourses. Commissioner Kelly said there have been adjustments made to accommodate improvements and the design of the bridge goes beyond its primary function.
Motion to: approve appl #12-28P, with the following conditions:
The final approved copy of the entire set of plans and this letter reproduced thereon must be submitted to the Planning Department. This must be completed within 65 days of approval prior to any construction activity on the site. Plans submitted to Planning & Zoning Commission shall be considered having met this requirement.
The application shall indemnify and hold harmless the Town of South Windsor against any liability, which might result from the proposed operation or use.
The permit is valid for five years and shall expire on July 18, 2017. It is the landowner(s)/applicant(s) responsibility to track expiration dates and notify the Commission of a renewal request at least 65 days prior to expiration.
Bonds shall be collected in the amount of $20,000 to ensure proper placement and maintenance of erosion and sediment controls; $25,000 for mitigation; and $50,000 for construction of stormwater structures.
All approvals required must be obtained and submitted prior to any activity on the site.
A contact person shall be identified on the plans.
A detailed dredging plan for the existing pond must be submitted to Town Staff for approval prior to staring work.
Wetlands established for mitigation must be monitored for three years.
Hydrology of wetlands immediate to detention basin must be monitored for two years after the establishment of the basin.
A 5 year maintenance plan to be submitted for the rain gardens and created wetlands to suppress invasive plant colonization.
Regarding the management of the area adjacent to the Barrett sedge, the overstory is to be removed to let in more light.
The street lighting to be placed on the east side of Pepin Place to impact the wetlands less.
Was made by: Commissioner Phillips
Seconded by: Commissioner Heffler
The motion carried and the vote was Warren, Phillips, Kelly, Blondin, Delnicki, Reed, Heffler: Yes; Brower - No; Muller: recused himself
ADJOURNMENT:
Motion to: adjourn the meeting at 10:50 pm
Was made by: Commissioner Heffler
Seconded by: Commissioner Delnicki
The motion carried and the vote was unanimous.
Respectfully submitted,
Donna Thompson
Recording Secretary
Approved as amended: September 19, 2012
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