Planning Commission Minutes 12/13/2016
PLANNING COMMISSION
DECEMBER 13, 2016
MINUTES FROM REGULAR MEETING
I. CALL TO ORDER
Chairman William Rice opened the Regular Meeting of the Planning Commission at 7:00 p.m. in the Main Meeting Room at the Town Offices. Also present were Jamie Rabbitt, Director of Planning and Community Development; Janis Prifti, Commission Clerk; and other interested parties.
1. Pledge of Allegiance
Commissioner Kulakowski led attendees in the Pledge of Allegiance.
II. ROLL CALL
Commission members in attendance were: William Rice, Elizabeth Burt, Gary Lungarini, Holly Beum, Alan Needham, Erin Leavitt-Smith, and Robert Kulakowski.
1. Appointment of Alternates
Chairman Rice seated Elizabeth Burt providing a full 6-member board.
III. APPROVAL OF MINUTES of the November 22, 2016 Regular Meeting
Commissioner Leavitt-Smith made a motion to accept the November 22, 2016 Minutes, as written.
Commissioner Needham seconded the motion, and it passed with William Rice, Elizabeth Burt, and Robert Kulakowski abstaining.
Chairman Rice thanked SCTV for recording these proceedings and thanked the Commissioners who attended the 11/22/2016 meeting providing and quorum and smoothly run meeting.
IV. OLD BUSINESS
1. Public Hearings
a. Application #16-02 of Mansour Prime Properties, LLC, Agent; Royce Palmer, Owner; for a 19-lot affordable housing subdivision under CGS 8-30g on the property located at 80 Climax Road (Assessor’s Map D20, Block 608, Lot 001). Zone R-40. (public hearing opened 11/22/2016; 65-day extension granted; public hearing must be closed by 02/02/2017)
Chairman Rice read Application #16-02 for a Public Hearing opened 11/22/2016 into the record.
Town Attorney Bob DeCrescenzo joined the meeting at 7:05 p.m.
Mr. Rabbitt clarified that the Applicant granted a 17-day extension of time for the Hearing to be opened on 11/22/2016 and have not agreed at this time to a full 65-day extension under State Statute and Town Staff has a letter to that effect; and Town Staff has a 2nd letter from Attorney Lew Wise dated 12/13/2016 regarding potential continuation of this Hearing where they would consent to an extension to the Commission’s next regularly scheduled meeting on 01/10/2017 in the event the 12/13/2016 meeting could not be held due to weather or lack of a quorum. Attorney Wise representing the Applicant explained the reason they have asked for the Hearing to be kept open until the next meeting is because they just received yesterday Staff comments and the traffic report submitted by the Intervenor’s consultant, and the Intervenor’s report for their environmental consultant was received today; and they need more than 24 hours to prepare responses to these reports and are here to listen and begin preparing their response. Attorney Wise confirmed the extension is absolute to the 01/10/2017 meeting, unless weather or some other complication arises preventing the meeting from being held, and then it would be extended to the next regularly scheduled meeting. Attorney Wise indicated they would provide their responses at the next regularly scheduled meeting. Commissioner Kulakowski noted an incorrect date on the Agenda for closing the Public Hearing by 03/02/2017; Mr. Rabbitt referred to information regarding dates in his letter of 12/13/2016 provided to the Commissioners that: 09/01/2016 was the official date of Application receipt; at the Commission’s next regularly scheduled meeting on 09/13/2016 a Public Hearing was scheduled for 10/25/2016, but there was an error in the Applicant’s notice to abutters and the Hearing was not opened on 10/25/2016; the Hearing was opened on 11/22/2016, which began the 35-day time clock, and the Application was continued to 12/13/2016 – the Applicant has used 17 days to date and with their extension to 01/10/2017, the Commission is within statutory timeframe of a total eligible period of 65-days of extension. Mr. Rabbitt further clarified the 03/02/2017 date on the Agenda should be ignored and the Applicant has consented to an extension to 01/10/2017 and under State Statute all of the extensions allowed would lapse on 02/13/2017, one day prior to the Commission’s regularly scheduled meeting on 02/14/2017.
Chairman Rice invited the petitioning Intervenor to provide comments. Attorney William Case represented the petitioning Intervenor, Jeremy Vearil, of Tallwood Properties, LLC, granted intervenor status at the last meeting. Attorney Case introduced the Intervenor team of experts, including: Scott Hesketh, Traffic Engineer, who has provided a report; George Logan, environmental expert and Soil Scientist; and Ed Lally, a civil engineer in the State for 44 years, whose report was submitted this afternoon which the Commission was requested to digest following this meeting.
Mr. Rabbitt asked for clarification regarding whether the testimony being provided relates to the petition to intervene on behalf of the environment. Attorney Case responded that the testimony would be multi-faceted and includes the environment, traffic, and problems relating to this Application. Attorney DeCrescenzo clarified to the Chairman that the petition that was granted is limited to environmental issues this Commission has jurisdiction over, which he believed was limited to the Erosion and Sedimentation Control Plan. Attorney Case asked if there was a rule that a citizen cannot hire an expert to provide testimony? Attorney DeCrescenzo explained that the petitioner is presenting testimony in support of the petition proving to the Commission’s satisfaction that this Application is reasonably likely to unreasonably pollute the air, water, and other natural resources of the State of Connecticut, and if that is successful, the burden shifts to the Applicant to rebut that. Attorney DeCrescenzo asked if the traffic engineer would speak to the environmental issues and noted the intervenor also has an opportunity representing the client on behalf of the abutting neighbors to offer testimony regarding traffic, etc., but the record needs to be clear regarding what the evidence is presented in favor of. Attorney Case suggested and Attorney DeCrescenzo agreed it would be clearer if George Logan’s testimony was presented first regarding environmental impacts and information regarding drainage capacity followed by the engineers. Attorney DeCresenzo wanted the record to be clear regarding what the testimony relates to. Chairman Rice summarized there would be no limit on the testimony, but rather the testimony would be lined up with the environmental aspects of the intervenor status, followed by public testimony. Attorney DeCrescenzo explained that the clients represented by Attorney Case can present whatever testimony they want, but testimony offered on behalf of the petition has to meet the standards under the 22.A.19 Statute. Chairman Rice noted an opportunity for public testimony would the petitioner’s testimony.
George Logan, environmental consultant, described his qualifications and provided a 4-page report with attachments to the Commission that this Application would harm the environment unreasonably. He believed in order to gauge the environmental impacts, as done in towns like Newtown have done, the Application should have included base line data of flora and fauna is missing with a majority of the site proposed to be clear cut eliminating a mature, high quality forest devoid of invasive species, which is unusual to find in the State. Also, in reviewing the Connecticut DEEP natural resources maps and estimated habitat for endangered species, he indicated a portion of the site has a high likelihood of listed species, although the Applicant argued against that in 07/15/2016 correspondence to the Commission; however, that does not negate the fact listed species could be present with all 9 bat species found in the State of concern and within a few miles of this site in East Granby is a concentration of endangered Northern Long-Eared Bats. Mr. Logan noted forests with trees above 18 inches are the kind of habitat that attract bats and it is important for mitigation to be provided. Mr. Logan also noted the Applicant has not provided proper soil testing to substantiate the claim of sufficient infiltration of storm water, which Mr. Lally will also discuss; the issue of concern is the larger Basin #1 in the southwest portion of the property, which receives the majority of storm water which is re-routed to Basin #2 and exits the site at Climax Road – they logged 4 new test pits with 2 in each basin – he was concerned with Basin #1 with the bottom at 303 and in the middle of the basin is a dry well starting at 303 and goes down to about 297 which they propose will allow infiltration into surrounding soils, but the two test pits stop at about 80-82 inches from soil surface, which in both cases with elevation 303 at the basin bottom below where they dug; one of the tests showed very dense soil characteristics which do not allow much infiltration with that basin probably having water for the duration of its existence. He summarized how the proposal would adversely affect natural resources: 1) destruction of habitat clear cutting a high quality mature forest dating back to 1934; and 2) the issue of water quantity control reveals that a large quantity of storm water generated partially by the high concentration of impervious surface in this high density concentrated development, and Mr. Lally also says the storm water management system is inadequate and will be unable to control the increased storm water flow rates. Mr. Logan noted that the way the proposed conditions have been designed vs. existing conditions for how the water falls, takes about 3 ½ acres of the site and re-routes them to a place where they currently do not go and put through the storm water management system and tied into the Climax Road drainage system which is then directed to the Evans Drive system at the cross-culvert catch basin where there is an intermittent water course crossing, which currently does not receive water from the 3 ½ acres currently. Mr. Logan looked at other properties vulnerable to additional water volume flow from Evans to Wheeler Road and the Avon boundary and found 3 houses in jeopardy with 1 near Wheeler on the east side where there is already bank erosion with visible attempts over time to armor the bank and an inadequate pipe at Wheeler Road with water jumping off the water course and very little elevation distance between the house and water course, which he believed would be an issue over time causing flooding issues and driveway erosion at Wheeler. He believed all this additional water increases the water shed and lead to erosion and undercutting of and enlarging the bank with effects on health and safety continuing into Avon with further impact on water courses and wetlands. He indicated pollutant loading of the total volume of constituents generated in runoff because of development, e.g. sediment or heavy metals generated, would be much higher than what is generated in surrounding land uses with a much higher potential for water quality impacts; it is well documented in technical literature that generation of pollution in runoff is closely correlated to the amount of impervious surfaces and also to the amount of vehicle movement with 19 houses and their impervious surfaces generating a much larger amount of pollution - tables in the back of the report prove that. He concluded because the storm water management system, as analyzed by Mr. Lally, is inadequate; because the largest best management practice Basin #1 will constantly be flooded; because there is so much pollutant loading from this kind of land use the best management practices are not designed for or sized correctly in order to attenuate pollution. He added typically the guidelines used look at capturing runoff from a 1-inch rainfall event for a significant amount of time for processes to attenuate pollution, including settling, chemical, microbiological conversion of nitrogen to a more innocuous form. He indicated if Basin #1 was not full of water all the time, there would be a process to detain and treat the water, but when it is full water comes in and goes out with limited time for water quality pollution attenuation. Therefore, in his professional view there will be degradation of water quality on the street. Commissioner Burt asked if having more basins would work? Mr. Logan responded that best management practices have to be looked at, e.g. a storm water pond which is permanently flooded that is much larger and deeper with a lot of dilution and a long time for water to get to the outlet; this is only about 15-18 inches deep and not very big with water heading to the outlet as it comes in; or the same size pond differently designed with less impervious surface coming into it. Commissioner Burt asked if cobblestone driveways/patios would mitigate runoff and provide less impervious surface? Mr. Logan responded that is a practice only recommended for well-drained A&B hydrologic soils and these soils are C and not conducive to that.
Mr. Rabbitt clarified that the Applicant could provide testimony at any point in the process. Attorney Wise confirmed their plan to listen to the testimony tonight and take the time to adequately respond.
Ed Lally, Professional Engineer in practice for 44 years, provided an electronic copy to the Town today of his 10-page report, and one hard copy with cover letter noting high points was submitted to the Chair, with 8 copies to be provided to the Town tomorrow for transmission to the Commission. Mr. Lally’s report reviewed problems in the design regarding public safety and impacts on the environment. He reported for a storm drainage system to properly function with sedimentation and erosion controls designed to address potential impacts of that storm water management program, e.g. rip rap erosion controls, filter fabric fence, seeding schedules, etc., all of those measures are overloaded if the system doesn’t function as planned; and it is difficult to say what part is environment and what part is public safety with his report showing impacts.
Mr. Lally presented the high points of his report noting that basically, the analysis of the storm water system proposed for Hendrick Cottage Road would be difficult for anyone to accomplish, let alone at this density. The first major problem with the site is that there is no natural concentrated point of discharge for storm water runoff; all the water leaves the site by sheet flow from the back major portion of the site. In Mr. Lally’s report, he pointed out why the Applicant’s drainage area map is flawed and provided a corrected drainage area map based on data they submitted to the Commission; that shows the bulk of the area sheet flow toward Tallwood along the whole length of the southern property boundary; a small portion of the site around the house and northwest of the house drains by sheet flow to an existing depression in the northwest corner of the property which depression is split by the existing property line with half on the property to the north and half on this property. He said water accumulating in that depression, when deep enough, will run over a driveway along the north property line serving a house substantially to the east; the driveway comes down Climax Road to the depression and then rises up, so that water flowing out of this depression onto the driveway in a more severe storm will not run out the driveway onto Climax but will go into a second depression in the woods north of the driveway north of the Applicant’s property line eventually bleeding off onto Climax Road via sheet flow through the woods filtered and distributed to the Climax Road gutter over a fairly long distance. Therefore, Mr. Lally’s reiterated the existing condition has no natural concentrated point of discharge with sheet flow primarily to Tallwood and somewhat to Climax north of this site.
Mr. Lally noted a second problem with the site are the Class C soils, which as noted in the Applicant’s report, are not good for infiltration. Additionally, he indicated they would excavate the most important storm water management device on the property, which is Basin #1 located in the southwest corner of the site adjacent to Climax; Basin #1 would be excavated to a fairly deep depth. He referred to the Applicant’s grading plan on G1 and their soils data and percolation tests; and noted in his report the test number, depth to the percolation hole, elevation on the ground according to their plans, and the actual elevation of the percolation test as it was done at depth, and the distance between that percolation test and the bottom of the proposed storm water management basin ranges from over 3 feet to just under 7 feet - the percolation test was done at a higher level and the bottom of the basin is lower, so they have no idea what exists at depth according to their tests. Mr. Lally early on had a test hole dug immediately to the south of the property line adjacent to Basin #1 and immediately to the north property line adjacent to Basin #2 and at the approximate basin elevation they took undisturbed soil samples and ran conductivity and permeability tests to determine infiltration and found the soil to be very, very dense, although it has some infiltration. He noted a recent project of theirs approved by the Town on Wolcott with permeability in the 80-100 range, and here it is .27.
Mr. Lally indicated the problem with no concentrated point of flow is that post-construction you cannot replicate a pre-existing drainage pattern if you propose a point discharge where there isn’t one. He continued that the runoff co-efficient used by the Applicant are too low for Class C soils; for woods it is 20% runoff, which is appropriate for a very low-intensity storm, but for a 100-year storm averaging 8.7 inches in Simsbury, 80% or 6 inches of water would sit everywhere in the woods and be absorbed in the woods and if there is a slope to a low point the water would pile up there. He said as more rainfall hits the ground, upper layers of the soil are saturated and vegetation gets saturated with water running off; the rational methodology the Applicant used was specified in the Town Highway Manual adopted in 1981, and there have been advances in the methodology/technology to analyze storm water; he quoted what the State requires and noted the Town requires them to provide for an application accurate representation of the storm drainage system and its function, and the only way to do that is to use the more accurate TR20 computer program, which provides the most accurate analysis of a watershed. Mr. Lally said because coefficient runoff are low compared to the Class C soils and a lot of impervious area on the site, the amount of storm water runoff is underestimated by the Applicant - the amount of storm water runoff rate and volume are wrong. He continued the Applicant’s hydrograph analyzes the longest rainfall duration at 51 minutes and for a 100-year storm it takes much longer than 51 minutes for rain to fall; the net result is since the volume of water reaching a certain point in the watershed is a function of time and rate, so if you shorten time, you shorten volume; so they have underestimated the rates and volume of storm water runoff. He indicated the net result is the Applicant would provide two emergency overflows that discharge to the gutter of the proposed road near Climax and one at Climax near Basin #2, and because the basins are both small and there is no infiltration calculation because there really isn’t any, and while their times of concentration are correct, their runoff rates are not correct and their storm duration is not correct in his opinion, and you end up with a lot less water running into the basins and you have more volume water and more rate, so the system doesn’t function correctly and there is water coming out of emergency overflows in a 10-year storm running into the gutter and down the street, which is a serious safety issue. Additionally, he said the cul de sac would receive water from about about 2 ¼ acres comprised of woods, driveways, and lawn and adjacent property, and did not believe one storm inlet in the cul de sac could drain 2 ¼ acres of surface area. He also noted that pipes throughout the development are at ½ to 1% pitch and the capacity of a pipe is determined by its slope/size; while the slope is a function of the site, the pipe size is not appropriate and could be adjusted. He noted the one basin in the cul de sac is in the depression and will flood in very low frequency storms, as will the middle of the road, given there is only one basin and the pipes are not big enough because runoff coefficients are too low and storm duration that is too short; he saw the Town Engineer’s comments today who said much the same. Mr. Lally indicated the storm water management system is too small for roof runoff and disagreed with the Applicant using too short a timeframe at .4 inches of roof runoff and believed it should be at least .95 for lower storms and more for higher storms for a roof – if 4 inches of rain falls on a roof, it will run off; the methodology he has used for the Town and State over the last 10-15 years changes the runoff coefficient based on storm intensity. He said the details shown on the current plan do not contain stone or filter fabric, but stone was discussed in a drainage report and would fill up with water in a 2-year storm with no impact to abutting property but fills up early in a 5-year storm and is full at its peak with water discharging onto the ground running onto abutting properties and into the road. He analyzed the roofs separately and they failed much sooner than anticipated. He said the drainage system deficiencies would lead to flooding of the road cul de sac in a 5-year storm, flooding of the depressed section of the proposed road in a 5-year storm, severely restricting public/private emergency use of the new road, access to the homes, and a great reduction in public safety; flooding of the road cul de sac will cause the water to overrun in more intense storms, not in the lowest intense storms, and run down Climax Road severely restricting public/private emergency use of the new road and of Climax Road; and the water flowing across the pavement from the emergency spillway onto the gutter of Tallwood through the intersection of Tallwood and Climax onto Climax will not always be water, but at this time of year would be ice; in a 10-year storm water comes out of the top of catchbasins #8 and #9, out of the 2 emergency spillways and floods into Climax Road in a number of places. Mr. Lally indicated the assumptions/methodology/runoff coefficients/program used are the same as he has used for a number of towns in the past several years revealing it is not a good design with no point of discharge, no soil absorption, and too much hard surface. He added the permeability of the native soils are so low as to be virtually non-existent and infiltration will not drain down the system in time to address back-to-back storms resulting in flooding on adjacent streets, as reported in his document. He performed a separate study of the storm drainage system looking at Basin #1, as Basin #2 is primarily a ditch running from a small depressed area at elevation 302 out to Climax Road and is not as large as this meeting room; in looking at Basin #1 with a 4-inch orifice outlet at elevation 304 ½ and the basin bottom elevation at 303 with 18 inches of standing water at the end of every storm that must soak in, and the next amount of water comes in to a full pond passing right through, and using Scott Stevens’ infiltration factor of .247 their analysis found it took 300 hours to drain down to the top of the frame of the dry well and a bit longer to drain the balance of the way. Mr. Lally has designed hundreds of drainage systems over 50 years; and in studying this proposal, did not see how you could have this development on this site, with these soils, this pitch, and no place to have a concentrated outfall.
Mr. Lally summarized that the deficiencies in concept application rates, specific details, and overall design are so significant that the proposed storm water management system cannot be reasonably modified to correct those deficiencies. He pointed out a typo in the report provided tonight that says it will drain down in “90 hours” which should say “300 hours” and a corrected report will be provided.
Commissioner Burt noted question that given the current permeability of the soil and presence of the existing forest, do their root systems absorb some of the water? Mr. Lally responded that they are talking about the function of a storm drainage system over half a day and the issue of its peak. Commissioner Burt asked if the existing trees are cut, would it exasperate the runoff situation? Mr. Lally responded that if you replace woods with lawn, roofs, and/or pavement you exponentially increase the amount of runoff; he wanted to make clear that the trees do not instantaneously take up the water but create an environment delaying the water from leaving the site with leaf litter and small pockets of roots trapping water, etc.; removing the trees and replacing them with anything will increase site runoff. He clarified that the problem is not only is it proposed to take a large area that drains by sheet flow to Tallwood and making it concentrate and flow to Climax, but the detention basin is too small for the amount of impervious area flow entering it, so either the detention basin has to be much larger, the impervious area has to be smaller, or the soils have to change, which is not going to happen.
Scott Hesketh, a licensed engineer in the State for about 25 years, was asked to review the Application, Town comments, and proposed relevance for traffic implications for the area and noted various documents reviewed, including: the Simsbury Highway Design Standards, Section 1.1 for subdivisions; Section 1.3 for service, safety, and economy of long-term maintenance; Section 3.1.1 for laying out and constructing streets to meet the Standards; Section 3.2.4 for intersections and spacing the center line of any two streets entering on opposite sides of a third street shall intersect the second line of the third street either at the same point or at a point no less than 200 feet apart for local, commercial , or industrial streets; Section 3.2.5 for intersection minimum sight distance for collector roads of 475 feet; Section 3.2.5, , subsection B.6, intersection sight distances measured from a point on the intersecting road 20 feet from the edge of the other road and pavement and measured at a height of 3.75 feet to an object of 4.5 feet on the approaching road. Mr. Hesketh noted the applicant submitted line review plans and his review found the proposed roadway access is about 130 feet from Wheeler road, which does not meet the requirements of Section 3.2.4 requiring a separation distance of 200 feet. In addition, Jerome Shea’s memos of 05/16/2016 and 09/26/2016 reviewing the Applicant’s plan each indicate intersection sight line distances at Climax Road for the proposed public road as required by the Simsbury Highway Standards may require additional grading or sight line easements adjacent to the proposed road. Mr. Hesketh continued that Mr. Shea’s 09/26/2016 memo indicated the intersection sight line requirements cannot be achieved looking left exiting the intersection using the Simsbury Highway Standards criteria; narrowing of the travel way northbound on Climax Road is not supported by Town Staff since introduction of an edge line may decrease roadway safety – the Applicant’s plan proposed striping a shoulder line or bike path on Climax Road in order to achieve sight distance; regarding comment #1, the memo states the Applicant’s consultant should certify that the State standard or Town standard can be met without the proposed changes to the cross-section of Climax Road. Mr. Hesketh’s view of the Town’s comments indicates that the Applicant has not satisfied Town Staff regarding the intersection sight lines for the proposed Hendricks Cottage Lane, as noted in the 05/16/2016 and 09/26/2016 memos. Mr. Hesketh noted the Applicant’s 07/18/2016 traffic report states that achieving the 475 feet of ISD using the Town’s methodology is not possible and a waiver from the Standards is required, and that was reiterated by Mr. Grenati at the 11/22/2016 Public Hearing; the traffic report also states that the proposed roadway intersection is expected to provide the necessary ISD to facilitate convenient egress to Climax Road; and the conclusion of the report states the conduct highway design manual ISD requirements are expected to be met for the proposed local roadway. Mr. Hesketh believed those statements imply the requirements can be met, but are not stated definitively; in order to achieve the required sight lines, the Applicant proposes installing the edge line on Climax Road allowing them to move the location of the drivers eye in the side street closer to road edge allowing them to see further down the roadway, which is not in conformance with Town Standards. Mr. Hesketh concurred with Town Staff’s statement that narrowing the travel way northbound on Climax Road is not supported by Town Staff since the introduction of an edge line to roadway may in fact decrease safety of the roadway; without the proposed edge line the required intersection sight distance cannot be attained. Following his review of the intersection sight distance plans, it was Mr. Hesketh’s opinion they do not demonstrate that the Applicant can meet the sight distance requirements under either the Town Standards or the DOT standards, which is a setback of 15 feet from the edge of travel way and without the proposed edge line the edge of travel way would be the edge of pavement and if the edge of pavement is used the drivers eye on the side street is so far back behind the edge of pavement when they looked left they would be forced to look across adjoining properties and since they do not have the right to grade or remove vegetation on adjoining properties, they would not be able to provide the 500 foot sight distance looking left from the proposed Hendricks Cottage Lane; even if they moved up by putting the edge line in and moving the drivers eye closer to the pavement edge, the submitted plans are confusing and seem to show the sight line looks through the existing ground pavement and do not demonstrate they are doing enough clearing, grading, etc. to achieve those sight distances. In addition, he said the submitted plans show that with some grading and the drivers eye closer to the pavement edge they can see the 500 foot distance at one point, but Climax Road has a dip in the pavement and when the pavement comes back up they have not demonstrated they can see a vehicle approaching them continuously from the 500 foot distance all the way to the roadway – if they look quick and pull out, someone could come up from the dip and there are difficulties. Mr. Hesketh noted additional material provided including material from Ashto adopted by the State into their Highway Design Manual and DOT has adopted their intersection sight distance criteria, not stopping sight distance which requires all roadways are designed for. Mr. Hesketh added that a letter from the Director of Public Works to the Police Chief indicating he is not in favor of the Applicant providing edge lines on Climax Road because they would not be able to continue the bike lane the full length of Climax Road confusing bicyclists about where a bike lane starts/stops; and without the edge line, the Applicant has indicated they cannot meet the sight distance requirements.
Chairman Rice asked Mr. Hesketh what the effect would be of the Applicant’s intersection design not meeting the various standards? Mr. Hesketh responded that the Town has adopted safety criteria standard for intersections to be designed to and if an application cannot meet that criteria, they are not living up to the safety standards set by the Town. Chairman Rice asked Mr. Hesketh for his professional opinion if he agreed there could be a safety issue? Mr. Hesketh reiterated that it did not meet the Town’s safety requirements, but did not know if it was safe or unsafe because the information submitted was not sufficient to make a complete determination; in addition, he noted in the ConnDOT Design Manual they defer to local authorities for design criteria of local roadways which do not intersect State highways, so in his opinion the Town Standards are the controlling criteria here. Commissioner Needham asked if a reasonable and prudent person would assume if you don’t meet a safety standard, it is not a safe condition? Mr. Hesketh responded that a reasonable and prudent person would certainly assume that. Commissioner Beum asked for clarification regarding the DOT Standards and the Town Standards, that in instances where a local road does not intersect with a State road, the more rigorous Town Standards apply? Mr. Hesketh indicated that was correct and read the confirming language from the ConnDOT Design Manual.
Attorney Case summarized that the reports and testimony of his client’s experts confirm that if this project is built it will create unsafe and dangerous conditions for residents and visitors in the Town of Simsbury and will unreasonably threaten the environment. His client and Town residents who have spoken against this Application are not against low income or 8-30g affordable housing, but take issue with the Applicant using the well-intended statute to bully the Town with threats of litigation and trying to force an Application down the throat of this Commission because this Application, if approved, would create a hazardous situation for future residents of the proposed development and for the Town, its residents, and its visitors. He urged the Commission to deny the Application and not be bullied into approving an unsafe and dangerous project that unreasonably threatens to pollute, impair, and destroy the environment. He indicated they believe further, based on Town Staff’s comments, reiterated in Scott Hesketh’s review of the traffic report; Ed Lally’s analysis that the proposed drainage system will create a hazardous, unsafe situation potentially damaging Town residents; George Logan’s testimony regarding the potential environmental damages onsite and downstream, including habitat for endangered bat species and this development, if approved, would cause unreasonable and unrepairable harm to the environment; a careful review of the Applicant’s traffic report and testimony at the last hearing; the Town Engineer’s comments in the file that, if the development is built, would create unsafe conditions on Climax Road that he believes cannot be designed around; while the Applicant states they can meet sight distances to the south, they failed to demonstrate that sight distances can be maintained for the entirety of the length necessary, and the Applicant’s submittal shows the potential driving coming off the proposed Hendricks Cottage Lane heading toward Rte. 44 that drivers must look through the ground to see approaching traffic, meaning sight distances are not maintained for the length needed to provide for safe travel – a car looking left from Hendricks may assume there is no oncoming traffic and pull out only to find a northbound car traveling on Climax appear unexpectedly, which is clearly a recipe for an accident and tragedy; traffic speeds of 15-20 mph over the speed limit, as provided in the Applicant’s road study, only add to the danger for drivers/pedestrians and is unsafe; to overcome the inadequate sight distances for the proposed roads and sight lines cannot be achieved through easements or permissions across private property, the Applicant proposes an arbitrary edge line along Climax, which is not supported by Town Staff who state the addition of an edge line may decrease roadway safety, and the Applicant has not demonstrated that Avon wants or approves this edge line forcing bicyclists coming from Simsbury into Avon where the road narrows where no connecting paths exist creating a perilous situation for merging bicyclists and drivers traveling on the road when the bike lane ends and potential for accidents and tragedy; cyclists and pedestrians make up a large portion of State traffic injuries/fatalities and an edge line on Climax would increase such risks, while currently Climax is historically a safe road with only one recent accident due to an illegal lane pass; adding the edge line without establishing a need is arbitrary, unwarranted, and not supported by Town Staff; the proposed Hendrick Cottage Lane would be only130 feet from the Wheeler intersection, which is a violation of the Town’s road standard and create further danger to traffic entering Climax; they see the Applicant attempting to circumvent Town safety regulations using a design policy to convince the Commission their proposal is safe while creating unsafe driving conditions on Climax Road, as pointed out by Mr. Hesketh and in Town Staff memos – they have not secured sight line easements across private property and sight lines on Climax Road are inadequate; the Hendricks drainage system is inadequate and fails in moderate, heavy, and back-to-back rain events, as outlined in Mr. Lally’s report, and cause flooding on Climax road and the proposed cul de sac creating unsafe conditions with washouts, ice, and puddling, and they believe this system cannot be designed for these conditions; this is the 3rd or 4th design with this proposal resulting in water overflow onto Climax and harm neighboring properties; the soils do not drain, as shown by the intervenors permeability testing and the Town Engineer recommends not accepting the system because it will create liability for the Town when it fails; furthermore, the flows today are drastically different than when this plan is implemented significantly altering storm water flow off of the sight; the Applicant’s methodology does not calculate real world water flows, but Mr. Lally’s responsible methodology finds that this system would fail creating perilous onsite and offsite conditions unreasonably endangering public safety. For all these reasons, Mr. Case requested that the Commission deny this Application, as presented. Mr. Case thanked the Commission for evaluating all of these materials and submitted for the record a 4-page “Statement to the Planning Commission 12/13/16”, which was received by Town Staff.
Mr. Rabbitt noted that Mr. Case brought 3 professionals to testify and the first two testified regarding environmental aspects, and the 3rd testified regarding sight line, traffic and transportation, and was perhaps not associated with their environmental intervenor status. Attorney Case agreed that was fair. Commissioner Beum asked for clarification from Mr. Rabbitt regarding the testimony. Mr. Rabbitt clarified under the intervenor proceedings, there are very specific criteria that can be evaluated by the Commission, and sight line is not one of those under the environmental act, but all of the testimony becomes part of the record. Attorney Case requested time for their experts to provide additional information in response to the Applicant’s submission at the next meeting. Attorney Wise objected stating his understanding that the Applicant always has the final say in responding to the Intervenor and Staff comments. Attorney DeCrescenzo indicated that is up to the Commission with the object of the Public Hearing to provide the Commission with information to make a reasoned judgment on the Application, and advised allowing Mr. Wise and his client to rebut statements made tonight, and if the Commission wishes, it can allow Mr. Case to respond within the timeframe allowed. Attorney DeCrescenzo noted the Application has been modified between meetings, and tonight the petitioner completed testimony relating to the Intervenor; Mr. Wise will rebut that testimony; and Mr. Wise reserves the right to respond to the rebuttal and it is up to the Commission within the timeframe allowed whether to allow further testimony, but he advised allowing anyone with pertinent testimony to put it on the record; then the record would be closed and he and Town Staff will provide the Commission with the standards to apply. Mr. Rabbitt noted administratively that Mr. Wise representing the Applicant has agreed to an extension and has requested the proceedings be continued to the Commission’s 01/10/2017 meeting, which would be the date to close the Public Hearing and the Intervenor would need to respond that night. Mr. Case asked if Mr. Lally’s computer engineering system may be required for the Commission to do hear about drainage calculations. Mr. Wise thought this only regarded the environmental impacts and not the drainage system. Mr. Case responded that related to environmental impacts. Chairman Rice clarified that the Intervenor should be prepared to respond that night. Mr. Case asked if information could be submitted in advance of the meeting. Chairman Rice responded that the Application is complicated and they have asked the Applicant to do that in the past. Mr. Rabbitt clarified that the Applicant has up to the close of the Hearing to submit testimony, a revised plan, new drainage plans, and a new layout, as there is no statutory requirement they submit in advance of the Hearing date; once the Hearing closes, the Commission has access to Staff and its review of the record. Mr. Wise indicated their materials have been on file for weeks and would see what happens on 01/10/2017. The Commissioners confirmed the intent to bring the matter to a close on 01/10/2017.
Chairman Rice invited public comment.
Todd Furnow of 16 Climax Road thanked the Commission for its diligence with this case and made 3 points. He wanted to put on the record that the Public Works Director had major concerns in the last application about the ability to remove snow, fire equipment to get into the development, and he did not see that that problem had been addressed. He found the Public Works Director’s letter last time to be very powerful that can’t be worked around by dumping things on lawns and as a fire hazard is huge. As a matter of clarification, he heard a presentation from the Intervenor relating exclusively to questions of the environment and another relating to traffic with both raising serious questions of safety, and the question he asks is that his understanding is one of the reasons for keeping them separate was the burden of proof with respect to rebutting an environmental claim stays with the Applicant and they have a substantial burden of proof in dis-establishing the arguments the Intervenors raised under the statute relating to the environment, is that correct, which is a different standard than would be applied to inputting the safety concerns about the traffic side? The reason that is relevant, is that you may well with a complex case get to the point where you just can’t figure out the right answer. He thought some of the questions tonight were great – what happens if they make the cistern deeper in site #1 and the argument he heard is you can’t make this safer environmentally. If you get to a point where you just can’t decide, his understanding on the environmental question, is the Applicant loses. If they can’t convince you and run the clock and not let Mr. Case respond to their experts, if you just don’t know, they lose on the environmental question because they have not carried their burden of proof. They may win on the sight line issue, assuming you are willing to grant the waivers that he thought he heard testimony saying you have to grant to get a variance from their inability to comply with the Town ordinances that deal with the sight lines. His last comment was that narrowing Climax Road is something not to be considered in a vacuum. He understood that you have to look at cars going along the road and you have to have a point in time you measure it and everybody’s done the test and come out more or less the same on traffic that goes down Climax Road. But to him the elephant in the room, as you probably all know, is the development going on in Avon - 92 acres being developed less than half a mile away from this sight that will bring 2 or 3 anchor stores, 360-400 apartment buildings, in a development that is less than half a mile away and the only way to get there from anywhere in the northwest part of Connecticut is to go down Climax Road or down Hopmeadow. He could not see narrowing Climax Road with these bike paths being decided in a vacuum if the question is safety. He understood there are rules that don’t allow us to raise these kinds of things indefinitely but that is a real project and they are building it now and that is a real safety concern.
Chairman Rice asked the Town Attorney to respond to the question about the distinction between the environmental aspects of the Intervenor vs. the testimony of an expert and the burden of proof. Attorney DeCrescenzo clarified that the petition was filed by Intervenor to submit testimony that this Application, if built, was reasonably likely to unreasonably pollute the air, water, and other natural resources of the State under 22A.19, which is the reference to the Statute. Under that Statute, the petitioner carries the burden of proof that its Application is reasonably like to unreasonably pollute and the Commission must make a threshold finding that they have met that burden of proof. If the Commission makes that finding, then the burden shifts to the Applicant that there are no reasonable and prudent alternatives to lessen the likeliness of polluting air, water and natural resources. So the petitioner has to meet the burden of proof and the Commission finds whether or not that burden of proof was met by the testimony heard at the Hearing. That is completely different than the burden on the general Application, because this is 8-30g and the rules are different than for a regular non-8-30g application and Staff will spell all that out to the Commission before the Commission makes its decision; the standards for 8-30g and the standard for 22A.19 are very different; the cases say it is a very high burden on 22.A.19 because only that testimony that relates to the Commission’s environmental jurisdiction counts toward meeting that burden of proof, and Staff will spell that out in more detail and that is why they have been very careful to say which testimony relates to what portion of the proceeding so they can untangle all this in a record on appeal, if there is an appeal of whatever decision is made. Commissioner Kulakowski asked Staff about 2 points in the letters from Town Public Safety and the Highway Department, and whether they have reviewed the new plans? Mr. Rabbitt responded that Mr. Roy’s letter dated 09/12/2016 is based on the new plan and understood the Fire Marshall is satisfied with fire hydrant location and snow removal, and will seek clarity on that. The Commissioners requested receiving an updated letter from both Public Works and the Fire Marshall for analysis regarding operating apparatus in that location for the current plan.
Chairman Rice invited any other members of the public to testify.
Sherry Perrin of Tallwood Hollow, which is the road right next to where the proposed development would be. She has lived there for 24 years and they are very used to coming out of this road literally parallel to residents who would come out of this development and sight line considerations are something that are always a problem. She noted that you folks have driven by this road and looked at it, but you haven’t lived it. The sight lines are so poor she said you almost have to be into the road to see, but you can’t get into the road because that road is so narrow. She recalled that 4-5 days ago she was inching her way out of the road and looked to the right and left down Climax with no cars coming and pulled out and there was a jogger she literally did not see and she almost bounced off her car putting her arms against the car and banged it and she screeched to a stop, but you just can’t see. She noted the sight line conditions were measured during the summer when there was no snow. If you add a huge snow bank, it really is perilous; she could not imagine 30-60 cars a day coming out with their street coming out and with all this increased traffic and most cars are speeding – at the last meeting the Applicant’s expert said the average speed was 47 mph, which was the average so there are people driving 50-60 mph down this very narrow road which has very poor sight lines. She said everyone living on Tallwood when they exit knows they have to creep out, even if looking left and right in those 2 seconds you just can’t see, and the Applicant’s suggestion that the Commission waive the sight line standards, which is something established by the Town for the safety of its residents and people driving on its roads, why should this be done and why should this precedent be set? She said if you waive a safety standard for this particular Applicant that is a bedrock of how Simsbury keeps its citizens safe, what other safety standards or other standards that are in place for the protection of people in Simsbury and on the roads can therefore in the future be waived because this precedent would be set. She said there is no reason why these well thought guidelines that Simsbury has should be contorted and waived just because this Applicant is threatening to sue Simsbury if they don’t get what they want. She wanted to say that because those who live there have a much more vibrant awareness of the sight line issues and really it is not a particularly safe road now, and she cannot imagine what it would be like if this came in. She thanked the Commission.
Brian Carpey of Wheeler Road had 2 points and reminded the Commission of his previous pencil demonstration noting that he had not even figured into that example the new Avon Town Center, and believed that cars exiting the development unable to see through the dip is a safety hazard. He said that much traffic coming out is an important factor, not including the Avon Town Center not included in his pencils as he would have to buy out Staples. He said another important factor is the environmental aspect; they are all on wells and he would love to see them put their money where their mouth is and personally guarantee that our wells and aquifer will not be impacted, they don’t care if it is; if it is we will then have to bring Town water in and who will pay for that? Us. He noted that on Pheasant Lane in Simsbury, 5 houses were assessed $15-20K to bring sewer down the street, so on Wheeler Road Avon owns the road and would have to bring in the water and he is paying for that; Simsbury would have to bring water down from Climax or Bushy Hill so all of the houses on Cricket, Nodbrook, Evans, Wheeler, David, and Sunset, would now have to pay for water if they sour their aquifer and no one has addressed that. He thought if they don’t want to put up their own money, that they should have to put up a bond or insure them so if they do sour the aquifer, they get compensated so they don’t have to pay $15-20K over 10 years for a water problem they caused. He said in addition to the environmental hazard, there is a real personal and financial aspect to them living there. He thanked the Commission.
Bill Nelson of 37 Tallwood Hollow, spoke on behalf of the species living in the woods. He indicated the species don’t register to vote in Simsbury or Avon, they just live in the environment. As a gentlemen said earlier, they just clear cut 92 acres on Rte. 44 where they are putting in the Avon Town Offices, so all those species have lost their habitat. He noted that clear cutting 4 ½ acres a mile away takes away more habitat for endangered species, which he presumes are the conditions that will occur. He wanted to speak on behalf of the animal population.
Jeremy Vearil of 82 Climax Road, requested the board’s consideration at the next meeting if the Applicant does come in with major drainage calculation changes for his team to review, because if they come in at the last minute the Town needs time, and also as shown by Ed’s 100-page report where it took him 3 days to do those calculations on the computer. He said knowing that if this is declined it will probably go to appeal and litigation, the more information in the Town file provides safety for the Town.
Chairman Rice made a motion to continue the Public Hearing until our next regularly scheduled meeting on 01/10/2017 at 7:00 p.m. in the Main Meeting Room of the Simsbury Town Hall.
Commissioner Needham seconded the motion,
Chairman Rice asked for any discussion of the motion.
The motion was passed unanimously.
b. Application #16-04 of LADA, P.C. Land Planners, Agent; Adeline F. Wagner and Richard D. Wagner, Jr., Special Trustees, Owner; for a 7-lot re-subdivision on the property located at 152 Old Farms Road (Assessor’s Map C07, Block 303, Lot 010). Zone R-80. (public hearing opened 11/22/2016; public hearing must be closed by 12/27/2016)
Chairman Rice read Application #16-04 into the record and stated his understanding that it has been withdrawn pending meetings with the Conservation Commission. Mr. Rabbitt confirmed that and indicated a letter was received from the Applicant’s representatives withdrawing the Application as they go through the Conservation Commission process because they saw some difficulty in aligning the statutory timeframes and thought it best to withdraw the Application, to address the process with regulatory agencies, and once that is solidified, to reapply to this Commission. Mr. Rabbitt clarified that once the withdrawal letter comes in the Application and Public Hearing no longer exist.
2. Applications
a. Application #16-02 19-lot affordable housing subdivision at 80 Climax Road
(decision must be rendered within 65 days of closing public hearing)
b. Application #16-04 for a 7-lot re-subdivision on the property located at 152 Old Farms Road (decision must be rendered within 65 days of closing public hearing))
3. Referrals
a. CGS 8-3a to the Zoning Commission on Zoning Application #16-50 of the Town of the Simsbury Zoning Commission for a Proposed Text Amendment to the Town of Simsbury Zoning Regulations, to be enacted as Article Three, Section A. 1. a, for a six-month moratorium, as an addition to the previously-approved twelve-month moratorium, which would have expired on January 9, 2017, and will now expire on July 10, 2017, on applications for, or approvals of, permits for development under Article Ten, Section N, Workforce Housing Overlay Zone, effective December 30, 2016.
Chairman Rice noted the existing moratorium expires 01/09/2017 and they are asking for this Commission’s referral for an additional 6 months to expire on 07/10/2017. He noted it has been referred to this Commission by the Zoning Commission for compliance to the POCD and a previous positive referral was provided. Mr. Rabbitt clarified that the Zoning Commission has submitted an application to themselves to extend the original 12-month moratorium for an additional 6 months for a total of 18 months; under statute any revision to the regulations has to be referred to the Planning Commission for an opinion back to Zoning – this is Zoning’s application. The Commissioners discussed that the POCD has not changed and the original referral should be reviewed by Town Staff and crafted in the same manner.
Commissioner Beum made a motion for a positive referral to the Zoning Commission to extend the moratorium; this referral will be crafted in the same manner as the previous referral.
Commissioner Beum seconded the motion, and it was passed unanimously.
V. NEW BUSINESS
1. Five-year extension request from River Bend Development CT, LLC, and Griffin Industrial Realty, Inc. for subdivision approval for the Meadowood Residential Development
Chairman Rice indicated that a request has been received from River Bend for a 5-year extension for the subdivision approval for Meadowood.
Tim Luscoly of Griffin Industrial Realty explained they are the parent to the Applicant with various name changes over the years. He provided the Commission with a letter requesting the 5-year extension for the development located between County, Hoskins, and Firetown Roads. He reviewed that in March of 2008 there were stipulated judgments in court settled appeals involving conservation, wetlands, planning, subdivision and zoning with a site plan for 299 units, later reduced to 296 units during environmental reviews in a combination of subdivided lots and common interest ownership. Since 2008 the Applicant has completed offsite traffic improvements at County and Hoskins Roads and Rte. 10; they completed remediation of about 125 acres in compliance with a plan approved by the State Department of Environmental Protection and the Town; they negotiated and conveyed 75 acres to the Town as public open space adjacent to Holcomb Street; they have committed more than 100 acres as public/private open space under the conservation easement overseen by the U.S. Army Corps of Engineers; they have committed other acreage outside of Town - 85 acres in Suffield to the State as voluntary mitigation for potential impacts at the Meadowood site on grassland bird habitats; overall, they have sold 253 acres to public/private open space for conservation purposes; they spent more than $4.5 Million on public improvements and project remediation; and since 2009 they have paid property taxes based on the land being improved for residential development albeit not constructed. Commissioner Beum noted she has been with the Commission for only a year and was not familiar with the Meadowood project and asked what the remediation was. Mr. Luscoly reviewed that it was a combination of managing soils on the property and removing wetland soils on the property and destroying a wetland area, which was all part of an approved plan worked on extensively with the Town based on the Court stipulated judgments. Commissioner Burt asked if that was because of soil contaminated by tobacco farms? Mr. Luscoly responded certain applications were detected on the property with some manageable on site by relocating soil and spreading soil around, but one area was voluntary removal by the Applicant of wetland soils destroying the wetland which they believed was the best solution and was done through an extensive process with the State. He continued they have done everything required and more to comply with pre-development work demonstrating their active pursuit of this project and the only thing remaining is construction, which they are presently evaluating, monitoring conditions, and seeking partners for development. Mr. Luscoly noted that this Application for a 5-year extension complies with 2012 General Assembly statute 8-3m which is statutory but it must be requested; therefore, they are before the Commission requesting the extension. He added they have worked with the Town, State, and Federal governments to preserve/conserve a great deal of property and have invested substantially in pre-development work demonstrating they are actively pursuing this project, but need more time. Chairman Rice asked if the original duration of the approval was by statute or part of the settlement for the lawsuit? Mr. Luscoly responded it was by statute providing the right for the Applicant to have a 5-year extension, but the request must be made; they received the extension from the Zoning Commission last week and are before the Conservation Commission on 12/20/2016; the approvals expire presently on 03/20/2017 and a 5-year extension would extend that to 03/20/2022; the original application was based on 8-30g.
Mr. Rabbitt summarized that the approval was associated with a stipulated agreement through the court system based on litigation; once that resulted in an agreement that was signed and approved by the court, that date started a 10-year clock and statutes were modified given the State’s recession to allow additional time beyond 10 years for subdivisions and other land use approvals to lapse; Attorney Hollister laid those timeframes out and Staff recommended the Commission approve the 5-year extension as called out in Attorney Hollister’s letter. Mr. Rabbitt added the 8-30g this was approved under has a different set of requirements than the current 8-30g, and those original requirements still apply to Meadowood. Chairman Rice conjectured that if the extension were denied, would it stop the Meadowood development? Mr. Rabbitt responded it would not and they could appeal the decision as the statute allows certain timeframes to be upheld and his experience is that extensions under statute are granted; or they could reapply under 8-30g. Currently under 8-30g, Mr. Rabbitt noted that the timeframe is 10 years with no extensions. At the time of the Meadowood application, the legislature decided to extend the date and all original conditions of the stipulated agreement apply; and they have complied with requirements under the agreement. Mr. Luscoly indicated the approval is for 296 single family houses on independent lots, as well as common ownership. Commissioner Beum indicated she would have to abstain from voting as she was not familiar with the project, and the Town and Applicant have expended tremendous resources on this.
Commissioner Kulakowski made a motion to accept and grant the five-year extension to Meadowood.
Commissioner Needham seconded the motion, and it passed with Holly Beum abstaining.
Commissioner Burt hypothetically said if land is purchased, housing collapses in Town, and the land is not developed, 10 years go by and an extension is requested. Mr. Rabbitt noted certain subdivisions require public improvement and others that do not; under State statute now it is the Applicant’s choice of whether to post surety for improvements and that could be a good training item for the Commission. If surety is not posted, Staff could recommend that conditions be placed on the development, which are removed once those things are accomplished, e.g. building a road, making sight line improvements, etc. and there are certain lots where development cannot occur until infrastructure is in place. He added that in most instances a potential buyer and the Town are protected from unseen costs for a potential development when the developer doesn’t perform. Chairman Rice indicated the Commission would like to continue this discussion at another time.
2. Discuss and possibly identify a representative for the CCROG Regional Planning Commission
Chairman Rice noted that each year the Commission identifies a primary and an alternate attendee.
Commissioner Beum made a motion to identify Chairman William Rice as the primary representative and Secretary Robert Kulakowski as the alternate.
Commissioner Leavitt-Smith seconded the motion, and it was passed unanimously.
VI. GENERAL COMMISSION BUSINESS
1. POCD Update
Mr. Rabbitt indicated booklets have been provided to the Commission for review and requested feedback. He noted a listening session at Henry James with 5 individuals in attendance is being held tonight and Mr. Glidden is taking notes and a 2nd session is tentatively planned for February. The Commissioners liked the binder format for the POCD.
Chairman Rice sat with Lisa Heavner and Jerry Litner, the TV host, to discuss the state of the Town which should be on SCTV soon and thought it was a great opportunity for the Planning Commission to get some exposure, and volunteered to participate at another session to get some points across
VII. ADJOURNMENT
Commissioner Leavitt-Smith made a motion to adjourn the meeting at 9:34 p.m.
Commissioner Kulakowski seconded the motion, and it was passed unanimously.