Conservation Commission/Inland Wetlands Minutes 12/04/2012 ADOPTED
CONSERVATION COMMISSION/INLAND WETLANDS &
WATERCOURSES AGENCY MINUTES
DECEMBER 4, 2012
REGULAR MEETING
I. CALL TO ORDER
Richard Miller, 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, Margery Winters, Darren Cunningham, Patrick Kottas, Ryan Mihalic, and Alan Needham. Also present were: Howard Beach, Conservation Officer; Janis Prifti, Commission Clerk; and other interested parties.
II. APPOINTMENT OF ALTERNATES
Chairman Miller appointed Commissioner Rieger to serve as an alternate for Commissioner Bucknam.
III. DISCUSSION AND POSSIBLE ACTION
a. Application #12-43 of Wesson Energy, Agent for Darlene Koplien, Owner, for a 500-gallon underground propane tank and trench to generator within the 100-foot upland review Area to a wetland on property located at 2 Weldon Way (Map E10, Block 147, Lot 016B).
Richard Sarandrea represented Wesson Energy and Mrs. Koplien regarding proposed excavation of 15-20 cubic yards of material stated in the paperwork, but he said it is really about 4-5 yards of material. He said he will store the material in his dump truck and the excavation site is approximately 9x4 feet and 50 inches deep; there is a substantial distance between the excavation site and Hop Brook. He said they would put up a silt fence at the bottom of the slope in the event of heavy rain, but he felt it is not a significant activity; they are trenching directly from the house to the generator. He confirmed the wetland is Hop Brook behind the high school at an older home. Chairman Miller noted the Commission may see more residents putting in generators because of storm outages. Mr. Sarandrea said there are more underground propane tanks because most people own the tank and can buy propane from anyone; he believes underground tanks are safer with less opportunity for tampering. Regarding tank construction standards, he said propane tanks are better constructed than oil tanks and stay at a 50 degree temperature underground, which dissipates moisture better and there is no leakage; manufacturers say the lifespan is twice that of an oil tank. He said there is a 6-8-foot distance between the propane tank and water at the bottom; the tank is in a dry area. Commissioner Needham stated his home has been heated by a CNG underground propane tank since 1967 and there have never been any maintenance problems.
Mr. Sarandrea met with the homeowner this evening to confirm this is the only location the tank can be placed to keep it away from the wetlands; a small 6-inch lid will protrude from the ground and the tank will be in a mulch bed. Mr. Beach said if an oil tank leaks, it goes down to the water table, but with a propane tank it does not and propane tanks are not regulated under aquifer protection. Mr. Sarandrea said propane tanks are double thickness; propane is heavier than air and, if it leaked, would liquefy and evaporate and not be an environmental threat. He plans on a 2-day installation since an inspection is required. He said once approval is received from the Commission the installation will take place in a couple of weeks. He added this is cleaner, more efficient energy and we will likely see a lot more of it. He said the homeowner eventually plans to switch her heating to propane also.
Commissioner Winters made a motion the Commission find that this is a regulated activity because it involves excavation in the regulated area next to a watercourse. Commissioner Cunningham seconded the motion, and it was passed unanimously.
Commissioner Winters made a motion this is not a significant activity because it is minimal excavation and a short-term activity and silt fence will be put in to control any possible sedimentation and material will be stored in the dump truck during construction. Commissioner Cunningham seconded the motion, and it was passed unanimously.
Commissioner Winters made a motion to grant the requested permit with the caveat for a mulch bed contained in the staff report. Commissioner Sexton seconded the motion, and it was approved unanimously.
b. 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).
Mr. Beach stated both homeowners are out of town and their land use expert could not attend tonight; they have asked that the Application be tabled to the 12/18/2012 Commission meeting. He clarified there have been 2 show cause hearings the applicants did not attend; they have hired an attorney and the Hearing Officer is waiting for a read from this Commission and has continued the hearing until 1/2/2013. He said the $1000/day fine is running and the Applicant filed an Application, as requested.
Commissioner Rieger made a motion to continue this Application. Commissioner Winters seconded the motion, and it was passed unanimously.
c. Soil and Erosion Control Plan for Planning Application #12-04 of William Ferrigno, Owner, requesting a re-subdivision of property located at 367 West Mountain Road (Assessor's Map A19, Block 503, Lot 002) to allow for the creation of 2 lots. Zone R-40.
Bill Ferrigno, Applicant and Owner, said this precedes an Application before the Planning Commission to break this property off into a rear lot. He confirmed with Mr. Beach the erosion and subdivision controls meet Town regulations. He said, as previously ruled, there are no wetlands on the property. Mr. Beach said while the Commission does not usually get involved in 1-lot situations, this falls under Chapter 128 of the Town Code, which is a Sedimentation and Erosion Control requirement for any application requiring approval by either the Planning Commission or the Zoning Commission; since this is a re-subdivision creating one additional lot, technically it is an Application before the Planning Commission, triggering review by the Conservation Commission.
Mr. Beach reviewed this plan with Mr. Sawitzke, Town Engineer, who judged it to be appropriate; there is minimal grading for the house and the chief flow from the rear of the property is west to east, down the hill toward the street, and at the front lot changes north to south, directing water to a small hand-dug ditch to a long-established 12-inch pipe underneath Mountain Road with minimal pervious increase. He said if there is a substantial change in the placement of the house on the lot, the applicant would need to return for approval. Mr. Ferrigno said the site is very well drained gravel with a perc rate of 3 minutes per inch.
Commissioner Rieger made a motion that the Plan meets the requirements of Chapter 128 of the Town Code and that on the advice of Staff and the Town Engineer the Commission finds the Plan is properly done and should meet the needs of the site and so advises other Boards considering the Plan, and states the condition where there is substantial change in the Plan it would be brought to Staff's attention and potentially back to the Commission, as warranted. Commissioner Sexton seconded the motion, and it was passed unanimously.
d. Soil and Erosion Control Plan for Tom Daly of Milone & MacBroom, Agent for Ethel Walker School, Owner, for a new proposed dormitory at Ethel Walker School on property located at 105 Sand Hill Road (Map E14, Block 115, Block 006).
Tom Daly represented Ethel Walker School which proposed constructing a new 2-story, 30-student dormitory with faculty apartments on each end as part of the Centennial Project. He said the dorm is needed to provide flexible space for existing students in more crowded dorms. He described the location of the proposed dorm between Smith and Cluett Dorms on the residential side of campus. He said the area elevation is about 12 feet and is not steep with the only water from rain; they have put in 3 potential contractor access sites for erosion control, and have a soil stockpile surrounded entirely by an erosion control fence. He said they are meeting with the Fire Marshal and there will also be a new road in the back providing better emergency access to the perimeter of the dorms. He said the erosion control plan provides for 1) temporary diversion berms to a temporary sediment trap allowing any runoff from the construction site to be diverted to the sediment trap to settle out and clean water to come out; 2) this is backed up with sediment filter fence and hay bales; and 3) this is mitigated by the heavy woods and the wetlands are about 2000 feet away. He said the overall footprint of the development area is about 2 acres; there is not a lot of cut and fill, except where the building terraces down; the soil is traditional glacial sill changing to sand at the athletic fields. Regarding roof runoff, he said it will be directed to the temporary sediment trap for bio-infiltration, planted with appropriate vegetation, and allowed to spill off into the woods; the sediment trap will likely become a permanent.
Mr. Daly said the 600-foot long access road will be 18 feet and paved to assure it will be plowed and will not be curved; the current access road will be eliminated. He said due to the underlying permeable soils, they did not use permeable asphalt for the access road. He said they will take down trees, but there is a nice vegetative buffer; construction will begin as soon as possible with the foundation in by early January and wood chips or bonded fiber mulch used to protect the soil til spring. Regarding stump grinding, he will discuss the potential of doing that on site.
Commissioner Rieger made a motion that the Plan contains the elements required in Chapter 128 of the Town Code and that on advice of Town Staff and the expert presentation, the Commission finds the Plan itself is suitable to the site and to the project and recommend it to the other land use commissions and find it satisfactory. Commissioner Mihalic seconded the motion, and it was passed unanimously.
Commissioner Mihalic made a motion to amend the Agenda so that item "f. Meadowood Conservation Easement" occurs prior to item "e. Possible diversion of the Farmington River to supply water to UCONN/Mansfield". Commissioner Winters seconded the motion, and it was approved unanimously.
f. Meadowood Conservation Easement
Attorney Tim Hollister summarized that Meadowood was originally proposed in 1999-2000, settled among the Town Boards and Commissions in 2007-08, and a major component of the plan was that 191 acres of the 363 acres would be open space; 77 acres are the triangle at Barndoor Hills Road; and 91 acres of public open space privately owned by Meadowood and the homeowner's association with a public trail easements runs throughout with about 22 acres of private open space consisting of tree belts and buffers. He said one of the last parts of the settlement in 8/2009 was Riverbend would voluntarily remove pesticide-contaminated soil in the center of the site; this necessitated an application to the Army Corps of Engineers. He said the Army Corps imposed a permit condition that Riverbend use their document and they have spent the last 14 months negotiating and molding the Army Corps document to Meadowood. He said the last piece is the Conservation Commission holding the Conservation Easement. He said they have made it clear the obligation is not just to preserve open space, but an affirmative obligation to set aside the open space and make it compatible with the public trail easements running through it and do everything necessary to both create the trails and preserve them in perpetuity; and 2) to make sure that obligation is eventually passed on to the homeowners so the Town receives the benefits in perpetuity of the trails and maintenance.
Mr. Hollister said at the request of Town Staff and Attorney DeCrescenzo, they have recently added phrasing making this consistent with conservation values, width of the trails, specific maintenance requirements, invasive species management as an affirmative obligation, ability to use motorized vehicles, and no dogs as required by the Army Corps. He stated this is a great deal for the Town and would like to not return to the Army Corps and this is the best time of the year to undertake excavation of the pesticides. Commissioner Rieger was previously appointed the Commission's representative and stated the easement does not impose on the grantor any affirmative obligation to maintain stewardship of the property, but with the option to prune trees, etc. and it is the Commission's position that someone should have an affirmative obligation to take care of the property. Regarding a side document to deal with this, Commissioner Rieger said the grantor has not agreed to this. Mr. DeCrescenzo said the side document and easement merged to one document and the grantor has not agreed to take on the affirmative obligation to manage the property under stewardship obligation. He said the Commission's position is valid and raises the larger issue of the form of the Conservation Easement and making the policy known. He said the grantor has obligations to lands outside the trails, but not to stewardship for lands outside the trails and the Town only has an access right to lands outside the trails for purposes of removing invasives.
Mr. Hollister disagreed with the characterization of what the Applicant has agreed to and noted the obligation for open space was zero and the Town is receiving 191 acres of open space or 53%; they did not have to go to the Army Corps and did so voluntarily along with the obligation in perpetuity to keep the open space in its natural state consistent with conservation easement values. But he in discussions with Mr. Lescalleet he said they cannot agree to the recently suggested language to add an affirmative obligation to engage in land stewardship activities because they do not know what that means; the 1999-2000 deal was that 191 acres will never be developed. He said there could be an instance of e.g. retroactively imposing creating something like a botanical gardens, and here the Army Corps of Engineers is telling them what to do and the Town cannot override the federal permit. Mr. Hollister pointed out language in the agreement creating the obligation to clear trees, brush, etc., including the trail corridor and whole 91 acres. Commissioner Rieger said this is a recitation of the purpose of the easement, but does not create an obligation.
Commissioner Mihalic asked if the Town has a separate right of access to the property to clean up the property. Mr. Hollister said he and Attorney DeCrescenzo negotiated today language added to paragraph 4. "Reserve Rights" that ..."provided that the grantee [the Town], at its expense and in lieu of the grantor and after obtaining written permission from the grantor and the Department of the Army New England District Corps of Engineers, may carry out the activities with respect to invasives authorized by Section 2. of the Conservation Easement." He said it is the grantors obligation to clear trees, but the mechanism is if the Town sees something involving invasive species it wants to do, the Town asks the Army Corps' permission and homeowner's association. Mr. Hollister said the homeowners have the right to access all the property, not just the trails.
Mr. DeCrescenzo said Article 10.c. states the Town's enforcement rights for the grantor's breach of the Conservation Easement, "to undertake any actions that are reasonably necessary to clear such debris or to repair any damage in the grantor's name to terminate such conduct." He said they have been trying to clarify the Town's right to preserve conservation values and clarify exactly what those are, and while this is written like most conservation easements, it could be clarified in terms of enforcement. Mr. Hollister said leaving a downed tree in its natural state is not consistent with conservation and environmental protection which is the significant obligation Riverbend and the homeowners are undertaking in perpetuity. Mr. DeCrescenzo asked if standard language in 10.d. is explicit enough stating "...the grantee may pursue any remedy it deems appropriate to correct such breach without prior notice to the grantor or without waiting for ...to expire." Commissioner Rieger said the predicate to Section 10. is that there is a breach in conduct, but in the case of fallen trees there is no conduct and would not give rise to Section 10. Mr. Hollister disagreed and said part of the value of the conservation easement is to maintain the property; the original obligation was to not develop the property. Mr. DeCrescenzo said 2.c. makes the best statement of the grantors obligation and refers back to the walking trails and suggested clarifying it further and tying 2.c. back to the purpose in paragraph 1 to make sure the grantor has the obligation to maintain. Mr. Lescalleet expressed concern as to whether this obligation exists in other easements in Town and is becoming more of a stewardship which they do not agree to.
Mr. DeCrescenzo said the Town was not offered the option of fee ownership, paid for the triangle open space, and now wants to assure the grantor preserves the purpose of the easement stated in section 1. and if it is not in 2.c. it is difficult to see how to enforce it under section 10. Commissioner Mihalic noted that using the Army Corps document in lieu of the Town's normal document has resulted in the need to clarify this language. Mr. DeCrescenzo stated section 4. does not provide the Town with the right to enter the property, except for walking trails, and in section 10. can only enforce the obligations contained in 4. Messrs. Hollister and DeCrescenzo agreed to add to section 2.c., "(i) to maintain in perpetuity as stated in paragraph 1. the Conservation Easement area; and (ii) to install and maintain in perpetuity the walking trails." Mr. DeCrescenzo stated in sections 4 and 10.b. there is an affirmative obligation the Town can enforce. Regarding Eagle Scout future projects, Mr. DeCrescenzo said the permission of the homeowner's association would be required. Commissioner Mihalic expressed appreciation and applauded the grantor for sticking with this lengthy process. Mr. Hollister agreed to add in 4.(?) after the word "easement" the words, "the parties agree that the reserve rights herein do not supersede nor effect the affirmative obligations of the grantor as stated in paragraph 2.c. and elsewhere."
Commissioner Rieger made a motion that the Commission accept the Conservation Easement as offered, as amended this evening, and accept its own role in it as one of the grantees, along with the Town itself as a grantee, and that it advise the Board of Selectmen and the Planning Commission that conditions contingent upon our acceptance have been satisfied; and previous discussions relating to a Supplemental Agreement have been mooted by including in the Conservation Easement itself the provisions that were to have been in the side agreement. Commissioner Winters seconded the motion, and it was passed unanimously.
At 9:15 p.m. Chairman Miller recused himself and Vice Chairman Winters chaired the remainder of the meeting and appointed Commissioner Kottas to act as an alternate for Chairman Miller
e. Possible diversion of the Farmington River to supply water to UCONN/Mansfield
Commissioner Rieger provided a link to Milone and MacBroom's Environmental Impact Evaluation which treated Farmington River concerns as secondary and relied on data from a 20-year old study. He proposed the Commission express its concern about the River in a letter stating River flows are low, water temperatures are up, and the nasty weather pattern is continuing. He said the Commission is open to a scientific presentation to substantiate why these are not a worry, but has not seen that and is worried about taking 1.93 million gallons a day from the River. He confirmed 1) this letter is being sent to the right person; and 2) provided a second "Outreach" draft memo for Commission approval informing interested parties about the Commission's letter, including Mr. Beach's counterparts in other towns, the Commission's counterparts in other valley towns, John Hampton, Linda Scofield, Kevin Witkos, Mary Glassman, etc. Commissioner Kottas asked how the Commission will be informed of the next step and if they will provide a response. Commissioner Rieger said communication has been lacking and part of this effort is to develop the perception the River has a constituency that needs to be talked to. Regarding the Wild and Scenic designation and whether it is impacted, he said Congress has not yet adopted it, but if any federal permit action is required the National Park Service could likely become involved.
Mr. Beach stated his concern regarding a 1929 agreement providing MDC the right to take the water, and according to the Milone report, their withdrawal is within the 1929 permitted amount. He said the 20-mile circle from Hartford touches about 5% of Mansfield and MDC feels therefore they have the right to serve the entire town. He said more disturbing than the 1.93 million gallons based on UCONN's future needs and Mansfield is what he read from the 1929 agreement, "whenever said district shall divert water under the authority hereof said district shall supply water to any inhabitants of the towns through which the line of main pipes conducting said water shall pass." He said every town between East Hartford and Mansfield has the legal right under this act to be served by this water, even though the State Plan of Conservation and Development (POCD) currently designates over 1/2 of this area as no-build or low development; this potentially causes the impetus for a re-write. Additionally, he said many town POCDs along the way are not consistent with the State plan and reserve more rights for development and economic stimulus, so if this diversion goes through it will assist with that development. He said MDC is a quasi-governmental agency and the Governor has publicly stated he will "do everything under his power" to make sure Mansfield receives water, and this is 1 of 3 proposals to do that. He said both Connecticut Water Company and the Well Fields, which would have to be moved, have proposals to supply water. He said non-members can also form an agreement with MDC to receive water for a surcharge. Chairman Winters stated DEEP is against inter-basin transfers.
Mr. Beach said the 30-inch pressurized pipe comes from East Hartford; the Farmington River water would tap into the existing system at Silver Lane in East Hartford. Regarding diversion rights along the Farmington River, Commissioner Mihalic felt more constituents will become involved in this complicated situation. Chairman Winters said the Department of Public Health has a regulation that water cannot be removed from the Class B Connecticut River, but water is taken from the smaller more ecologically-impacted Farmington River farther up where there is not a sewage treatment plant. Commissioner Cunningham thanked Mr. Rieger for drafting the letter and suggested sending it to every possible interested party. Commissioner Mihalic suggested conducting an information session in Town inviting interested parties. Commissioner Rieger will work with Mr. Beach to develop a wide distribution for the letter and said FRWA is working in parallel.
Commissioner Rieger stated the deadline for providing comments on the Wild and Scenic Study is 12/21/12.
Commissioner Cunningham made a motion to accept the letter as drafted by Commissioner Rieger and to take the action steps as outlined in the discussion by the Conservation Commission. Commissioner Kottas seconded the motion, and it was approved unanimously.
IV. RECEIPT OF NEW APPLICATION(s)
None.
V. CORRESPONDENCE/ANNOUNCEMENTS
None.
VI. APPROVAL OF MINUTES of November 20, 2012
On Line 119, "Commissioner Cunningham" is corrected to "Commissioner Winters".
On Line 114 and wherever it appears in the minutes, "de minimus" is corrected to "de minimis".
On Lines 114, 167, 172 and wherever it appears in the minutes, "water course" is corrected to "watercourse".
Commissioner Rieger made a motion to approve the minutes of November 20, 2012, as amended. Commissioner Kottas seconded the motion, and it was passed, with Commissioner Cunningham abstaining.
VII. ADJOURNMENT
Commissioner Mihalic made a motion to adjourn the meeting at 9:40 p.m. Commissioner Kottas seconded the motion, and it was passed unanimously.
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Ryan Mihalic, Secretary