Conservation Commission/Inland Wetlands Minutes 01/15/2013 ADOPTED
CONSERVATION COMMISSION/INLAND WETLANDS &
WATERCOURSES AGENCY MINUTES
JANUARY 15, 2013
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, Margery Winters, Ryan Mihalic, Patrick Kottas, Alan Needham, and Darren Cunningham. 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 Zackeo and Commissioner Kottas to serve as an alternate for Commissioner Sexton.
III. PUBLIC HEARING(s)
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).
b. Application #12-48 of James and Jennifer Bosworth, Owners, for the removal of trees and vegetation in a regulated area on property located at 4 Apple Lane (Map D08, Block 147, Lot 002).
Commissioner Mihalic read the Applications into the record.
Attorney Carl Landolina of Fahey and Landolina was joined by George Logan, Wetlands Scientist, in representing Applicants James and Jennifer Bosworth, who were in also attendance. Mr. Landolina referred to the 12/18/12 meeting discussion and requested those comments be part of the record tonight and had no further comment, but reserved the right to rebut during the Public Hearing. He expressed his clients’ appreciation for the Commissioners' visit to their property on Saturday, 1/12/13. He said a number of issues are involved, some of which don't concern the Commission, but depending on the result they may amend the Application to request moving the dock's location. He said one reason is what's a perceived encroachment beyond the 1971 center line of the brook line shown on the Subdivision Map, as well as concerns regarding their future applications, most notably to the Zoning Board of Appeals, and whether the present location of the dock encroaches into the side yard setback set by the Zoning Regulations, as well as the rear yard. He visited the site today and said the dock's present location has a fairly straight line from the maintained lawn and the distance to get to water varies greatly on the property. He said the dock was put in its present location to achieve the shortest distance from the lawn into an area where the dock would be useful for fishing in water. He said the 1971 line has not yet been determined by their surveyor on the ground and they want to ensure: a) the dock is located properly to satisfy wetland regulations; and b) there is water underneath the dock, as they do not want to have just a deck. Commisioner Mihalic discussed the Commission's finding that this was a "significant activity", calling for a Public Hearing because of its impact on the wetland / watercourse. The Inland Wetland Regulations stipulate that once an activity has been declared a "significant activity" an Inland Wetlands Permit cannot be issued unless the applicant can demonstrate that no feasible and prudent alternative exists. It is difficult to assess hypothetical impacts that might exist should the dock be moved.. Mr. Landolina said it currently appears the dock encroaches beyond the 1971 line about 18 feet and removing 18 feet from the dock may not put it over water; they will find out if there is a location for the dock that respects the 1971 line and leaves the dock over water. Regarding the former dock, Mr. Bosworth said it was to the left of this dock and had deteriorated and extended much further than the existing dock; they located this dock at the shortest point to the water (2/3 the distance of the old dock). Mr. Logan provided the Commissioners with a 2004 photo showing the visible portion of the old dock. Mr. Bosworth said they purchased the property 3 years ago. Regarding the dock structure being grandfathered in, Mr. Beach clarified that potentially applies from a Zoning standpoint if something has been there for more than 3 years, but from a Wetlands standpoint, if it causes a disturbance, that does not apply. Regarding installing the metal dock, Mr. Bosworth said it was done in an environmentally safe way and the dock is suspended above the vegetation and the 1 1/2 inch metal posts probably go down to refusal and are at staggered heights and there is no excavation. Mr. Beach noted regarding the Applicants’ having a surveyor come out, the Commission has 35 days minimum to make a decision, and if an extension is granted, up to 65 days. Mr. Landolina said their intention is to have minimal impact on the area and to satisfy the 7 Commissioners present and will deal with ZBA separately. Mr. Logan said moving the dock to a location that satisfies ZBA would result in a longer run through wetlands and vegetation and toward the north. Regarding how much the modular dock encroaches on the setback, Mr. Landolina said each section is about 14 feet and the dock edge is about 18.4 feet from the 1971 line and removing one section may not leave the deck over water. He said in 1966, when Hop Hollow was approved and subdivided, the lots were sold to the center of the watercourse. He said Mr. Carter owned property on the other side and in 1971 obtained approval for Apple Lane using the same watercourse depicted on the 1966 map, although the watercourse had changed because of the dredging operation that took place between 1966 and 1970, and the problem is the watercourse on the 1971 map was not depicted accurately. He said when you go to the center of a watercourse there is normally a closing line from point A to point B, but that was not done on the 1966 or 1971 maps. He said they would like to keep the dock in its current location. Mr. Bosworth said their Deed says to the center line of the water and they only put the dock to the edge of the water and he would prefer not to dredge and to consider alternatives. Mr. Logan said the dock is shallow at about 13-15 inches above water and the only disturbance is 1 1/2 inch poles and is minimal. The Commissioners discussed following their site walk that leaving the dock in place, rather than moving it, appears to minimize impact and is a basis to grant a permit.
Chairman Miller invited public comment.
Robert Helfand of 2 Hop Hollow, Vice President of the Hop Hollow Tax District, represented the residents of that street. He requested that the hearing be continued stating a concern about where the property line is. He said there was a narrow watercourse when Hop Hollow was developed and all their deeds indicate their property goes to the center of that watercourse; when the watercourse was widened it was all on their side of the watercourse and Apple Lane was developed as well. He said nothing on the maps could have reduced the size of the property lots on Hop Hollow, which was developed first. He said it was important to them that this proceeding not impact that particular issue. Regarding the dock extending into Mr. Hixon's property at 6 Hop Hollow, they consider that action to be improper. He said it would be more prudent to continue the hearing, rather than issue the permit.
Roger Vote of 15 Hop Hollow stated his understanding the Commission is considering 2 issues: 1) clear cutting of trees, shrubs and undergrowth were removed, altering the natural habitat of the area with everything taken to the ground without a permit; a cease and restore issue was issued in May 2010, but nothing has been restored. He stated he provided a photo to the Commissioners on the site walk showing the scenic natural landscape. He said the area has been cut to the ground and an out-of-place 84-foot aluminum dock installed; without shade from those trees, the water in the brook is warmer with increased algae and a less healthy brook. He said in spite of the Cease and Restore Order and receiving the Wetlands Regulations, an 84-foot dock was installed without a permit nor contacting the neighbors and it looks atrocious from the Hop Hollow side. He said in the 12/18/12 meeting notes, Mr. Landolina stated the dock company checked and no permit was required, yet at the Saturday site walk, Mr. Bosworth said a neighbor called and first told them no permit was necessary; he asked if there is a record of the call. Regarding property lines, he said Mr. Landolina often refers to the center line of the brook; yet the Bosworth Deed stated the center line of the brook as defined on a specific map. He said there are specific side line dimensions on the map for both 4 Apple Lane as well as the Hixon property on Hop Hollow; specific dimensions and reference points are on the map because of the expectation that the land would be removed to create a pond on the east side of the brook. He said before the expansion, the brook was about 4 feet wide and the Bosworth’s owned about 2 feet of water. He said creating the pond and keeping property dimensions the same was planned and why that specific map was used; only the specific certified map matters. He stated the Deed for 4 Apple Lane's Declaration of Restrictions and Covenants prohibit, ".., no construction will be extended over or into Hop Brook a distance greater than 12 feet without the consent of the majority of the owners of the lots which abut Hop Brook." He said this consent was not obtained and the natural look of the area has been savaged, the structure encroaches on another's property, the Deed restrictions violated, and the permit should be denied, the dock removed, and the area replanted to restore its natural state.
The Commissioners clarified their regulatory authority is limited to enforcing Town Wetland Regulations and undertaking related enforcement actions; aesthetics and other issues of property lines are not within this Commission's purview. Mr. Helfand said the Commission does not have legal authority to issue a permit to construct a dock over someone else's property and would take action to undo that permit. Mr. Beach said Mr. Hixon disputes the property line and they used the 1966 map in 1971 to prevent a property dispute to the center line of the stream. The Commissioners discussed granting a permit for a dock on the Bosworth property and that moving the dock would have a more significant wetlands impact; any removal of the dock would result in the Applicants returning to the Commission for a permit. Commissioner Mihalic noted the Commission has an open enforcement action and finality on the permit makes sense, unless the Applicant is willing to agree to a continuance. Mr. Landolina said it could take a year or two to resolve the property line issues and there are currently no enforcement actions. The Commissioners considered waiting for input from the Town Attorney and continuing the hearing, noting no action has been undertaken by Mr. Hixon. Mr. Beach said if a permit is issued, a member of the public has 14 days to appeal the permit. Commissioner Cunningham added that often the Commission deals with something already built and is then asked to look at the situation and resolve what is best to protect the wetlands. Mr. Landolina said they would prefer the matter be decided tonight, but will go along with what the Commission decides, as they do not want to be in an adversarial posture. He said his client enjoys certain property and water rights and Mr. Bosworth said they built the dock as his children could not access the water easily and were in fact not allowed to access the water from any other location. He plans to make sure a dock is in place and to undertake dredging, if necessary, but would prefer to move forward. Regarding extending the hearing to the next meeting, Mr. Landolina said a surveyor may be able to determine whether the dock could be placed within the 1971 line and still be over water. Mr. Bosworth suggested this Commission is not the right place to have the property line discussion. Commissioner Mihalic stated the property line does not impact the Commission's decision regarding the permit for the dock. Mr. Halforan agreed the Commission does not intend to act outside its legal authority and suggested a discussion within the 35-day period could be beneficial.
Mr. Landolina and the Bosworths recessed from the room for further discussion.
Mr. Logan said he disagreed that the dock had caused warming in the pond because it is not a riparian cold water creek, but is an open water body, and removal of 5 trees back from the edge of the watercourse would not have a measureable effect. He said his client would consider vegetation to enhance the area and the dock has increased the wetlands values of education and recreation. He has seen many docks over the years, and this is the most innocuous and friendly dock he has ever seen with only some pole in the ground and its elevation mitigates shading; removal of the dock would have more negative impact and it is in the best location. He would prefer to look at the area in the spring to develop a vegetation plan. Mr. Beach noted there were invasives, including multiflora rose and purple loosestrife. Mr. Logan saw a diverse mosaic of meadow marsh and scrub shrub. Regarding algae blooms in the pond, Commissioner Winters commented the homeowners’ lawns could have larger buffers near the pond to improve its management. Mr. Logan said it is a shallow pond and the source of its water likely includes the golf course. Regarding letters received from neighbors, Chairman Miller clarified they are part of the record, including Mr. Hixon's letter that the Bosworths own to the center line of the brook, as shown on said map.
Mr. Landolina and his clients and Mr. Helfand rejoined the meeting and noted they are under a clock because of the violation of a zoning ordinance and would welcome a decision. In the interim, Commissioner Mihalic reviewed the Commission's regulations and said its process allows them to issue permits with conditions. The Commissioners agreed a permit could be issued with conditions; other members of the public were invited to comment, but there were no further comments.
Commissioner Mihalic made a motion to close the Public Hearings on both matters before the Commission. Commissioner Kottas seconded the motion, and it was passed unanimously.
Commissioner Mihalic made a motion concerning Application #12-47 that this is a regulated activity because it involves construction of a dock in a watercourse, in an Upland Review Area, and in a wetland. Commissioner Rieger seconded the motion, and it was passed unanimously.
Commissioner Mihalic made a motion that it is not a significant activity based upon the presentation made by the soil scientist, the Applicants, the information that the Commission was able to observe as part of the site walk, and other information presented at the hearing. Commissioner Rieger seconded the motion, and it was passed unanimously.
Commissioner Mihalic made a motion to approve the permit subject to the following conditions: that if any of the underlying facts germane to the issuance of the permit were to change, the Applicant would be required to come before the Commission again for purposes of an amendment to the permit, if one is so required; that we are issuing this permit based upon representations made by the Applicant that they do in fact own the property on which the dock is currently situated and it is not otherwise legally deficient. Commissioner Rieger seconded the motion, and it was passed unanimously.
Commissioner Mihalic made a motion concerning Application #12-48 that it is a regulated activity because of the cutting and deposition of trees in an Upland Review Area and a wetland. Commissioner Kottas seconded the motion, and it was passed unanimously.
Commissioner Mihalic made a motion that it is not a significant activity based upon the amount of trees observed and that homeowners have a right under Wetland Regulations to engage selective tree maintenance and removal. Commissioner Rieger seconded the motion, and it was passed unanimously.
Commissioner Mihalic made a motion supplemented by Commissioner Rieger to approve the permit, subject to the condition that the Applicant present to the Commission by June 2013 a plan of mitigation which involves planting of native plants and the Commission will have a chance to approve that, and control of invasives. Commissioner Winters seconded the motion, and it was passed unanimously.
Commissioner Mihalic commented that the Applicant is well on notice that any other activities in this area should come before the Wetlands Commission.
IV. DISCUSSION AND POSSIBLE ACTION
a. Enforcement of violations at 4 Apple Lane (Map D08, Block 147, Lot 002).
Commissioner Rieger commented contempt toward Town Staff's jurisdiction was serious and the prescribed penalty should be carried out. Chairman Miller and Commissioner Mihalic felt that the vegetation mitigation plan moves in that direction. Commissioner Winters asked how the Commission acts long term to address the problem of applicants not coming in.
V. DISCUSSION ITEMS
a. Proposed MDC Farmington River diversion
Mr. Beach stated their representative has the flu and is very interested in scheduling a presentation to the Board.
VI. ADMINISTRATIVE APPROVALS
Mr. Beach discussed with Chairman Miller placing a generator on a pre-cast concrete pad with minimal impact in the Upland Review Area which was approved administratively.
a. Application #12-49 of United Electrical Service, Inc., Agent for Peter Pabich, Owner, for the installation of a generator on slab on property located at 20 Woodchuck Hill Road (Map A09, Block 440, Lot 003).
Mr. Beach said the impact is minimal and was approved.
VII. RECEIPT OF NEW APPLICATION(s)
Mr. Beach said an Application was received for Pine Glen for a generator placed next to a house, but Pine Glen is in the wetlands and the Application will come before the Board at the next meeting.
He said an application came in to dredge a pond at the golf course 15th hole and will come before the Board at the next meeting.
a. Application #13-01 of Saint Catherine of Siena Church, Owner, for the expansion of existing wetland crossing and modification of existing church parking areas on property located at 265 Stratton Brook Road (Map C11, Block 406, Lot 021).
Mr. Beach said the church is applying to expand a wetland crossing put in a few years ago along with increasing parking, which requires work in the wetland, and the Application will come before the Board at the next meeting.
VIII. CORRESPONDENCE/ANNOUNCEMENTS
None.
IX. APPROVAL OF MINUTES of December 18, 2012
On Line 99, the words, "possibly introducing" is inserted before the word, "beetles"; and the word, "at" is inserted before the word, "any".
On Line 168, the word, "draft" is inserted before the word, "stream".
On Line 169, the year/word, "2050" is changed to, "about 2050, if the draft had been adopted."
Commissioner Rieger made a motion to approve the minutes of December 18, 2012, as amended. Commissioner Winters seconded the motion, and it was passed with Commissioner Cunningham abstaining.
X. ADJOURNMENT
Commissioner Cunningham made a motion to adjourn the meeting at 9:25 p.m. Commissioner Rieger seconded the motion, and it was passed unanimously.
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Ryan Mihalic, Secretary