Conservation Commission/Inland Wetlands Minutes 12/18/2012 ADOPTED
CONSERVATION COMMISSION/INLAND WETLANDS &
WATERCOURSES AGENCY MINUTES
DECEMBER 18, 2012
REGULAR MEETING
I. CALL TO ORDER
Margery Winters, Acting Chairman, called the Regular Meeting of the Conservation Commission to order at 7:35 p.m. in the Main Meeting Room at the Town Offices. Other members and alternates in attendance were: Donald Rieger, Margaret Sexton, Ryan Mihalic, Patrick Kottas, and Alan Needham. Also present were: Howard Beach, Conservation Officer; Janis Prifti, Commission Clerk; and other interested parties.
II. APPOINTMENT OF ALTERNATES
Chairman Winters appointed Commissioner Rieger to serve as an alternate for Commissioner Cunningham and Commissioner Kottas to serve as an alternate for Commissioner Bucknam.
III. DISCUSSION AND POSSIBLE ACTION
a. Application #12-47 of James and Jennifer Bosworth, Owners, for the construction of a dock into the regulated area on property located at 4 Apple Lane (Map D08, Block 147, Lot 002).
Attorney Carl Landolina, of Fahey and Landolina, represented Jennifer Bosworth and was joined by George Logan, Wetlands Scientist, in support of the Application. Mr. Landolina provided a certified copy of the Deed to the property to 1) verify the standing of the owners to bring the Application; and 2) to show the northeast boundary of the property to the center line of Hopbrook. He said to the extent there has been movement of the center line of the brook over the years, it was his opinion that is not an issue for this Commission to determine whether the Applicants are owners of the property in question. He provided a couple of pages from a 3-volume treatise written by Judge Robert Fuller, in private practice, an expert on Connecticut zoning laws; on the 2nd page it states Zoning Commissions don't decide questions of title, e.g. CT Appellate Decision for Beckish v. Manafort. He said the owners own to the center line of the brook and the center line has probably moved. He provided recent photos showing the owners extended the dock beyond existing vegetation.
Commissioner Mihalic stated the Commission is not defining property rights, but is addressing that the existing dock did not go through the permitting process, which required adjacent property owners be provided the opportunity to comment. Mr. Beach confirmed this meeting was not noticed for Public Hearing. Commissioner Mihalic noted multiple attempts to reach the Applicant went unresolved and activity subject to regulatory approval was taken by the Applicant making it awkward for the Commission to grant a permit for activity that has already occurred vs. issuing a cease and restore order based on the Town map and location of the dock to restore the land to its natural state and assure property rights are maintained, and that the official permit process take place with proper public notice. Mr. Landolina said in his legal opinion his clients own to the 2012 center line of the brook and no one contacted his client or him to ask them to stop. He said they followed the same procedure as for any Application and the public has not availed themselves to participate. Mr. Beach stated neighbor Alan Hickson contacted him several months ago with concerns about the property line, but he has been unable to reach him recently.
Mr. Logan provided aerial photos from the Connecticut State Library archives denoting the northern and southern property boundaries. He said the 1st photo from 1965 shows a wetland to the west of the brook and on the other side a grass area down to the brook with little vegetation; the 2nd photo from 1970 shows excavation of the pond easterly, away from the Applicants’ property, thus moving the center of the brook easterly, because the pond as defined in CT is a watercourse, and shows the Applicants’ wetland remains intact and the same. He said it was a watercourse before and remains one and the wetland was not touched with its very poorly drained soil. Mr. Landolina said, looking at the Warranty Deed reference to the center line of Hopbrook and the date of the June 1971 subdivision, the 1970 aerial photo confirms dredging had already taken place. Commissioner Rieger asked for clarification between the 1971 line and the earlier map referenced in the Deed. Mr. Landolina said the rest of the photos show there has been no substantial change in the width of the watercourse since 1970; any movement in the center line was not manmade, but a factor of nature, and the law states the center line of the property moves with the brook. Mr. Logan thought that between 1965 and 1970 adjacent property owners expanded the pond and moved the center line of the brook by expanding the water and this happened prior to issuing the 1971 map. Commissioner Mihalic stated the Commission is not charged with resolving the title issue and has jurisdiction to schedule a public hearing allowing the public to speak. Mr. Landolina said he could provide a Certificate of Title that his clients own to the center of the brook and any neighbors that disagree have the legal right to challenge. He stated his belief that he provided the Commission enough information to make a decision. Mr. Logan continued that the 2004 photo has another layer of information with a redline showing the Town Assessor's map given to the DEEP showing the same center line of the brook and edge of the property. Commissioner Mihalic and Attorney Landolina agreed that the Assessor's map is not evidence of title.
Commissioner Mihalic summarized an activity without a permit has occurred, a cease and restore order with accompanying fines has been issued, and a related administrative procedure has taken place. He said a delay does not hurt the Applicants and it may be best to consult with Town Counsel, schedule a public hearing for the next meeting on 1/15/2013, with application of the fine stayed for this period, and thus ensure making the right decision. He said there is evidence of a dispute and it may be best to consult with counsel regarding the best way to proceed, as the permit is remedial.
Mr. Logan explained the Bing.com 2009 photo dotted lines show areas that are not wooded with scrub shrub and meadow marsh; the 3/29/2012 Google photo shows 4 trees are down, with a beige area of wood chips in the wetland at the bottom of a steep slope 6-8 feet from the lawn edge. He provided 11/14/2012 photos he took showing the floating aluminum dock with poles pushed into the soil held by chains on pivots floating on top of the water; it supports 2-3 people at a time with piers sunk into the muck; it is 4-5 feet above an area where there were no trees and incurs into the wetland about 12 feet. He noted one invasive and a robust shrub layer with Alder, Dogwood, Willows, etc. and an assortment of marsh species with native aquatic species at pond edge. He said where the dock is located there has been no cutting of trees, shrubs, nor movement of soil and he saw no continuing impact on the wetland, except for minimal shading. He recommended a more in depth look at this area during the growing season in order to develop a plan to eliminate any invasives, possibly introducing beetles, and at any other areas requiring attention to promote wetland diversity.
Regarding the previous violation for this property about a year ago, Mr. Beach explained Ms. Charest cited the owners for tree cutting in a wetland with no permit and issued a cease and desist with a show cause hearing, but due to an oversight, it was not followed up and no fine was issued. Ms. Charest's violation notice was accompanied by a copy of regulations providing knowledge of permitting requirements for dock installation, resulting in this Commission issuing a cease and restore order; a subsequent hearing regarding the fine was continued to 1/8/2013 and awaits Commission input and will be delayed further if a public hearing is held. Mr. Landolina stated there were remnants of an older dock when his client acquired the property and Regatta Dock Systems from Morris, CT, said they checked and no permit was required. Mr. Beach confirmed it is a State requirement. Regarding cutting trees, Mr. Logan confirmed 4 trees, 3 evergreens, and a few saplings; the larger maple was chipped into the wetland. Mr. Landolina said he could amend his Application to include the cutting down the trees. Commissioner Mihalic agreed that made sense and suggested scheduling a site walk in the interim. Mr. Landolina had no objection and decided he would file a 2nd application regarding tree cutting and submit it by the end of the week to combine it into one hearing. Commissioner Mihalic said there would be more questions regarding the Application and requested the Applicant bring in their experts. Mr. Logan said the dock is 84 feet long with an 8x10 platform at the end and the landing is in the upland review area. The Commissioners clarified while cutting trees is allowed, stumping and clear cutting is not, and the professional who cut the trees should be informed, as well.
Commissioner Mihalic made a motion to schedule this matter for a Public Hearing at the next meeting to allow ample notice, based on the fact that it constitutes a significant activity as defined in our Regulations. Commissioner Rieger seconded the motion, and it was passed unanimously.
Regarding scheduling a site walk, the owners and the Commissioners agreed it will take place Saturday, 1/12/2013 at noon.
Commissioner Mihalic made a motion in lieu of the open question to Town Counsel and the scheduling of the Public Hearing on this matter, that we stay the application of the fine issued pursuant to the Cease and Restore order until our next scheduled meeting when we hear this matter. Commissioner Rieger seconded the motion, and it was passed unanimously.
Mr. Beach said Wetlands Regulations require a 2-week appeal period between receipt of an Application and any action on it. The Commissioners agreed that 2 public hearings can be held on 1/15/2012 and in the interim will consult with the Town Attorney. The Commissioners thanked the Applicants for their cooperation.
IV. DISCUSSION ITEMS
a. Proposed MDC Farmington River diversion
Commissioner Rieger said the Commission's letter was filed with UCONN's representative and brought to the attention of the Board of Selectmen, who were in agreement with the Commission's position and authorized the First Selectman to communicate further. He said she wrote to UCONN's hosting site, to Commissioner Esty and to Governor Malloy; Commissioner Esty assured her the process would be open. He added she sent copies of her letter to officials in adjacent towns and she spoke about it at the CRCOG meeting. He added Simsbury Land Trust has communicated on the subject and the Tariffville Village Association will do the same. He summarized that interest has been raised as a result of this Commission's action. He said the time for comment ends 1/4/2013. Mr. Beach said SEPA has a provision for EIE's for a 60-day extension and the Council on Environmental Quality (CEQ) will discuss it tomorrow. He said Simsbury is a stakeholder. Under SEPA, Mr. Beach said when a state agency is taking an action the only requirement is that they have to post the EIE on the Environmental Monitor and there has been no notice, other than to the Town of Mansfield. Regarding a hearing on this side of the River, UCONN felt that would be hard to do. Mr. Beach said CEQ comment could be made regarding completeness and public notice.
Mr. Beach said the 1929 Charter exempts MDC from following State regulations and allowing them to serve any town or part thereof within 20 miles of the State Capitol and hits Mansfield by about 10 feet; the next written line says any inhabitant of any town through which those main transfer pipes pass is entitled to draw water from that system, providing MDC the ability to provide water to every town between Silver Lane in East Hartford and the town of Mansfield. He said a large segment would be rural and conservation lands, which is contrary to the State POCD. Commissioner Rieger added the EIE does not quantify how much water those towns might demand in the future from the Farmington River. He said the MDC strategic plan #1 goal is to increase revenue by increasing the customer base and securing the right to draw water from the west branch of the Farmington River. He said their comments in 2010 on draft stream flow regulations state they would have to tap the west branch of the Farmington immediately, rather than in about 2050, if the draft had been adopted. He said they also cite a Milone and MacBroom study that everything is cool because water MDC is taking from the east branch of the Farmington is offset by their good management of the water from the west branch. He said you can't both need to tap the water from the west branch and use it to offset what you are taking from the east side, but the EIE says there is plenty of water in the west branch as verified by a 1992 study; however, the climate is warmer and stream flows are different than in 1992. He said the critical point is the study says they can take 20 million gallons of drinking water per day from the west branch and still meet all needs, except in a 99% excedance drought. However, he said the quotation in the Commission's letter about the river last summer that there wasn't enough water, the water was too hot, and there wasn't enough water behind the dams, precedes taking 20 million gallons per day out without a 99% excedance drought, and with just a hot dry summer, means EIE's justification for the MDC plan based on the 1992 study is wrong. He said the volumetric demand for this project began at 1/2 - 1 million gallons a day and increased to 1.9 million, but is now scoped out at 5 million gallons a day, which may be what is going to those towns. Also, he said cost data for MDC's plan, which is the most expensive alternative, is not clear about how much water is being delivered for that cost number; it may be for 3 million gallons per day and 5 million gallons per day may be another $30 million.
Mr. Beach said the 1929 Charter states if MDC delivers water to a State facility, like UCONN, the State pays for the pipes, so taxpayers will pick up the $51 Million and add all these customers. He said none of the towns the pipes go through are MDC member towns and will have to pay a non-member fee and all capital costs associated with extending pipes; MDC does not pay to build this system, bills customers for water, and 1) a non-member fee, which combined with the capital fee, can be 4x a user's actual water usage fee for a significant profit margin; and 2) high usage customers receive a lower rate, which discourages conservation. He said MDC's attorneys contacted FRWA reminding them of a past Portland agreement requiring that FRWA not object to any other diversions, so FRWA took down their website.
Regarding the Conservation Commission holding meetings to educate the public, Chairman Winters said there have been meetings with Mr. Hampton, Ms. Heavner and Ms. Glassman, who has been contacting other towns. Mr. Beach said this is a significant interbasin diversion permit and anything involving Federal permitting triggers a Section 7 review under Wild and Scenic, and some people are working at the State Capitol to get pass-through federal funding. Regarding permitting, he said the EIE requires a Section 404 permit from Army Corps for the diversion, but Army Corps cannot issue a Section 404 permit until DEEP issues a Section 401 to Army Corps, which may provide the potential for intervention at that point. Regarding CEQ, he said they can only address completeness of the EIE. Regarding input to EIE, he said the public can comment with potential for a second EIE required, including public comment. He said CTN has indicated they will attend the follow-up CEQ meeting and public comment will be broadcast. Regarding newspaper comments, he said Patch picked it up.
Regarding the water coming from two reservoirs and not the river, Commissioner Rieger explained the Barkhamsted Reservoir is the east branch of the dammed Farmington River and the Nepaug Reservoir is a dammed tributary of the Farmington River near Collinsville. Mr. Beach said once there is not enough water to take from the east branch, MDC intends to tap the west branch. Chairman Winters said CEQ should discuss tomorrow taking piecemeal water from one basin or ground water influence or wells from the Connecticut River and that a comprehensive logical water plan for the whole state's development should have priority over an advantageous business deal for MDC. Mr. Beach verified CT Water would have to pay the infrastructure cost of supplying UCONN, but CT Water gets a lot of their water from MDC. Mr. Beach said the State's repeated goals the last 10 years have been sustainability, smart growth, and government transparency. Chairman Winters added interbasin transfers are not a DEEP policy; Mr. Beach agreed the State POCD is unfavorable and bases development on available resources.
Commissioner Sexton left the meeting at 9:12 p.m.
V. RECEIPT OF NEW APPLICATION(s)
None.
VI. CORRESPONDENCE/ANNOUNCEMENTS
None.
VII. APPROVAL OF MINUTES of December 4, 2012
On Line 3, "Ryan Mihalic" is added to the attendee list.
In "II. APPOINTMENT OF ALTERNATES" the words, "and Commissioner Kottas to serve as an alternate for Chairman Miller at the time he recuses himself." are deleted.
On Line 27, "area" is corrected to "Area".
Under "f. Meadowood Conservation Easement", the spelling of "Lescalie (?)" is corrected to "Lescalleet" wherever it appears.
On Line 243, "appointed Commissioner Kottas to act as an alternate for Chairman Miller" is added.
Commissioner Kottas made a motion to approve the minutes of December 4, 2012, as amended. Commissioner Needham seconded the motion, and it was passed unanimously.
VIII. ADJOURNMENT
Commissioner Mihalic made a motion to adjourn the meeting at 9:20 p.m. Commissioner Kottas seconded the motion, and it was passed unanimously.
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Ryan Mihalic, Secretary