Conservation Commission / IWWA Minutes 03/01/2016
CONSERVATION COMMISSION/INLAND WETLANDS
AND WATERCOURSES AGENCY MINUTES
MARCH 1, 2016
REGULAR MEETING
I. CALL TO ORDER
Margery Winters, Chairperson, opened the Regular Meeting of the Conservation Commission at 7:30 p.m. in the Main Meeting Room at the Town Offices. Other members and alternates in attendance were Craig MacCormac, Andrew O’Connor, Jim Morrison, Donna Beinstein, and Donald Rieger. Also present were Jamie Rabbit, Director of Planning and Community Development; Michael Glidden, Assistant Town Planner; Janis Prifti, Commission Clerk; and other interested parties.
II. ROLL CALL
1. Appointment of Alternates
Chairperson Winters seated Commissioner Beinstein for Darren Cunningham.
III. APPLICATIONS
1. Administrative Approvals
None.
2. Discussion and Possible Action:
a. CONTINUED FROM 02/02/2016; CONTINUED FROM 02/16/2016; CONTINUE TO 03/15/2016: Application #16-03 of BMG Management, LLC, Owner, for clearing and regrading the parking lot to install utilities and improve drainage on the property located at 560-566 Hopmeadow Street, (Assessor’s Map G12, Block 132, Lot 036). Zone B-1. (received 01/19/2016; 30-day extension requested; decision must be rendered by 04/23/2016).
Town Staff confirmed that the Applicant requested continuing Application #16-03 to the 03/15/2016 meeting.
3. Receipt of New Applications:
Application #16-04, of Dan Lacz, SL Simsbury LLC, Owner, for the demolition of the existing multi-story office building within the upland review area to a wetland on the property located at 200 Hopmeadow Street (Assessor’s Map F17, Block 154, Lot 009-2). Zone Hartford-Simsbury Form-Based Code. (received 03/01/2016; decision must rendered by 05/05/2016)
Mr. Rabbitt reviewed that Application #16-04 proposed demolition at the Hartford property in two phases: Phase 1 would be internal to the building and Phase 2 would take down the superstructure; a site plan was provided to the Commissioners. Mr. Rabbitt described the “L”-shaped building with small lay-down areas within the impervious parking lot on the south and on the west edge; silt fence is currently going in using a ditch witch so it is well anchored, and reinforced with soil and hay bales, as necessary. Mr. Rabbitt noted the 14-day statute appeal period for a Public Hearing.
Attorney T.J. Donohue representing the Applicant indicated, while there are many plans for this project, Application #16-04 is for a very small aspect of the project with all activities taking place on previously disturbed soils, on the existing campus area, or on existing parking lots, with great protection and silt fence already going in. Mr. Donohue acknowledged the Conservation Commission will have significant responsibility for this project because as part of the Applicant’s proposals, there will be limited access to the river. Mr. Donohue indicated the permit requested is for less than a 650 sq. ft. area of the existing building and they are under time pressure. Mr. Rabbitt confirmed the northeast corner of the “L”-shaped building is in the URA with a fire access road around the easterly edge and that building corner.
Regarding the location of the silt fence and what it protects, Mr. Rabbitt described its location with the perimeter silt fence starting in the northwest corner and heading southeast and then south within the grass lawn area, and noted everything in the area appears to be curbed – some granite, some bituminous lipped, the catch basins have sumps with flared end sections to rip rap plunge pools with level spreaders with the intent to contain anything prior to reaching the URA, using silt sacks in the catch basins, etc. Mr. Rabbitt continued that the Applicant first needs exterior laydown areas as they pull material out of the building, but the bulk of the building will come down internal to itself.
Regarding dust and whether airborne materials could get into the wetlands and river, Mr. Rabbitt explained the building permit process requires the Applicant to contain dust and any sediment onsite; he described the example of the Norwich State Hospital demolition where each area they were working on was wet down in high wind or high dust situations.
Mr. Rabbitt noted at 7:35 p.m. that the Manager from the Silverman Group had joined the meeting and may be able to answer questions.
Regarding an asbestos survey, Mr. Rabbitt confirmed that had been done and there is a mitigation plan; under the building code, abatement must take place prior to demolition; the Silverman Manager indicated there were 30 stainless steel sinks with a type of asbestos undercoating and 10 pipe gaskets. Mr. Rabbitt invited Commission questions and recommended tabling Application #16-04 to the next meeting in order to allow for Public Hearing statutory requirements.
Commissioner MacCormac made a motion to table Application #16-04.
Commissioner Morrison seconded the motion, and it was passed unanimously.
IV. GENERAL COMMISSION BUSINESS
Mr. Rabbitt informed the Commissioners that Attorney Bob DeCrescenza was scheduled to arrive for the Workshop and additional discussion of Application #16-04 at 7:45 p.m.
Commissioner MacCormac made a motion to adjust the Agenda to take up Correspondence.
Commissioner Morrison seconded the motion, and it was passed unanimously.
2. Correspondence
Chairperson Winters noted an issue raised by Commissioner Rieger regarding Niagara Bottling exporting bottled drinking water from the Farmington River, given previous Commission concerns regarding the UCONN diversion. Chairman Winters suggested the Commissioners take a moment to review her proposed draft letter requesting the First Selectman obtain more information for the Commission’s further assessment of whether this use of watershed water is sensible. The Commissioners agreed the word “Farmington” should be added before the period in the 5th paragraph’s second sentence, and in other places in the letter where “River” appears.
Commissioner Morrison asked who has jurisdiction. Mr. Rabbitt believed that MDC has statutory rights for water distribution within their territory in concert with approvals from Connecticut public utilities with multiple State agencies weighing in on recommendations. Mr. Rabbitt confirmed MDC supplies the water to Bloomfield where the plant would be located.
Commissioner Rieger commented that, while his initials appear on the draft letter, it is not his work product. Chairperson Winters apologized and clarified Commissioner Rieger’s initials did not appear on the draft letter sent to Staff. Commissioner Rieger read the following into the record:
“Comments on the Niagara Bottling Proposal
The Commissioners should not be confused by the presence of my initials at the bottom of the Niagara Bottling proposal. It is not my work product.
Here is the history:
On Monday, February 22, I wrote a draft statement on Niagara Bottling for the Conservation Commission’s consideration. I e-mailed it to the chairman, asking her to put it on the agenda and noting that I probably had a little polishing to do and that I would be pleased to have any suggestions she might offer.
Not having had a response, I resent it late the next day, just in case it had not been received. I copied Mike on that e-mail.
On Wednesday she replied. She offered extensive comments for my consideration but wrote, “I will forward your final letter to Michael for inclusion in the agenda.” I accepted some of her suggestions. For example, I removed my reference to climate change, since I understand that she does not agree with the consensus view on that. I did not, however, accept most of her suggested changes since they changed the whole import of my draft. I sent my revision to her the same day.
On Friday, when the packet came out, I found that Niagara Bottling was not present. So I sent my draft to Mike, with a little cover memo to the Commissioners, and asked him to put it on the agenda and to recirculate the notice, so that members would see the draft and have a chance to think about it.
On Monday, a Niagara Bottling draft was on the agenda, but it was the chairman’s wholesale rewrite, not what I had proposed.
I grant you that the chairman gets to set the agenda. However, I think it is unacceptable for the chairman to deny the Commissioners the opportunity to read and think about a proposal from one of their own number. They could disagree with its content. They could reject it out of hand. They could debate its reasoning and reword it. They could find an alternative preferable to it. But they could only do those things if they could see it.
For the chairman to present the Commissioners only with her own version, inoffensively phrased but completely inconsistent with mine, is unacceptable, undemocratic behavior and a misuse of the chairmanship.
I will vote against the proposal because it is the result of an abuse of the process.”
Chairperson Winters asked if Commissioner Rieger had a copy of his draft letter, but he did not, and commented that while the Chairperson’s belief in people’s ability to read something at the table and make a reasoned judgement about it immediately was commendable, he found it difficult. Chairperson Winters explained that she sent a copy of Commissioner Rieger’s draft letter to Mike on Sunday, but it did not get into the package. Chairperson Winters suggested tabling discussion of both draft letters to the next meeting, but Commissioner Rieger felt that two weeks from now would be too late for the Niagara letter.
At 7:45 p.m., Attorney DeCrescenza was announced as joining the meeting and indicated he had heard some of the discussion. Chairperson Winters summarized her Niagara draft letter process where she received Commissioner Rieger’s draft letter and provided comments; she thought much of the letter was not germane to the Commission and drafted another letter and noted she should have sent both draft letters to the Commissioners. Attorney DeCrescenza asked whether the letter posted on the website was intended to be a statement of the Commission or individual members. Chairperson Winters responded it was supposed to be a statement of the Commission and she rewrote Commissioner Rieger’s letter entirely and indicated only to him the draft changes. Chairperson Winters indicated the letter was supposed to be a statement of the Commission with members voting on it and believed she was remiss in not sending out Commissioner Rieger’s draft letter as well; no vote has taken place. Chairperson Winters letter focused on requesting the First Selectman and BOS obtain more information regarding the Niagara project. Attorney DeCrescenza noted this is a Commission issue regarding a collective statement to be sent to the First Selectman, and not a legal issue.
Commissioner Rieger indicated his draft letter was to provide a public statement, e.g. similar to the UCONN/MDC model four years ago. He noted that at the CACIWC meeting this year, the keynote speaker characterized the role of the Conservation Commission (unlike the Inland/Watercourses Agency) as a full-throated unrelenting advocate for conservation of the environment. He believed this statement could have been picked up by the press and others raising numerous environmental concerns about the Niagara project, including potential depletion of flows in the Farmington River through Simsbury, the problems of creating many thousands of plastic bottles, the thousands of tractor trailer trips to transport the bottles and their air pollution, and the carbon footprint from manufacturing the plastic bottles; in particular, MDC would be exporting water outside the watershed, rather than allowing the water to flow down and nourish the river, which is known to be in trouble. Staff printed a copy of Commissioner Rieger’s draft letter for the Commission to review. Chairperson Winters apologized to the Commission for the confusion.
Commissioner Morrison asked about the timing concern. Commissioner Rieger responded the Niagara project was politically in motion and is currently a hot issue and was the subject of Colin McEnroe’s column in the Sunday Hartford Courant, but the longer one delays, the less likely something can be done. Mr. Rabbitt related his understanding that the Town of Bloomfield’s Planning and Zoning Commission and their legislative bodies have approved the project and associated agreements; also, MDC has a charter to operate and sell water within the territory and DPUC, as the overall public utility for the State, also signs off. Commissioner Rieger indicated this is for a water customer with a special tariff given by MDC to Niagara which will pay less per gallon than all others, which is the opposite of what should be done from a conservation point of view. Commissioner Rieger noted the statewide water planning folks have taken note of this project and may be nudged in the right direction as well; Chairperson Winters indicated she hoped to do that with her draft letter. Attorney DeCrescenza asked if any appeal had been taken under 22.A.16; but that has not happened yet. Commissioner Morrison commented on the tremendous amount of water that would be taken at 1.8 million gallons/day or more than 1000 gallons/minute. Commissioner MacCormac asked about the percentage of total flow per day; Commissioner Rieger responded that it varies each day, but another part of the MDC deal is if there is a drought, Niagara is exempt from that until Barkhamstead Reservoir reaches 10% of its capacity. Commissioner MacCormac asked whether there was any seasonality for Niagara’s use; while Commissioner Rieger had not seen all the paperwork, he was not aware of any seasonality.
Commissioner O’Connor queried whether Commissioner Rieger’s draft letter was intended as a press release. Commissioner Rieger confirmed that it was and was similar to the UCONN letter which was sent to the press and neighboring towns. Commissioner Morrison suggested that the second to the last paragraph regarding one-use bottles, the carbon footprint and the trucks in Commissioner Rieger’s letter remain in the draft; Chairperson Winters believed the bottles would be exported out of the region and it is not in the Commission’s jurisdiction to tell Bloomfield what to do/not do – the Town Recycling Commission could be more appropriate, although the effect on the river’s water flow is germane. Chairperson Winters felt that discussion of water bottles clouds the issue, and preferred to have the emphasis on water planning, but it is up to the Commissioners. Commissioner MacCormac shared the Chair’s thoughts, and while the bottles are of concern, they may dilute the message as concern about what is happening to the river is the broader issue; Commissioner Morrison felt it was important to highlight the use of the water for these single-use bottles. Commissioner MacCormac asked if it was known what size bottles would be used; Commissioner Rieger responded we did not, but single-use is likely. Commissioners Morrison and Beinstein felt the paragraph succinctly made the point regarding water being taken from the river for export; the Chair agreed, but wondered whether it serves the Commission’s purpose. Commissioner Rieger cautioned against taking too narrow a view of the Conservation Commission’s broad mandate, as stated in the handbook to be “the conservation consciousness of the community” and not about water. The Commissioner’s discussed the scope of that consciousness. Commissioner Morrison believed the deleted paragraph did not dilute the key message and should remain as it focuses on how and why the water is being used. The Commissioners discussed whether to release both letters – one to the First Selectman regarding water planning and then to release Commissioner Rieger’s letter as issues arise concerning this type of release from the watershed. The Commissioners discussed who to send the letter to, including John Hampton. Commissioner Rieger also suggested Margaret Minor and that it was an unlikely role for the First Selectman. Commissioner O’Connor expressed appreciation for both documents, but his view was that the Chair’s letter was more appropriate to send and Commissioner Rieger’s draft was more appropriate as an op/ed personal opinion piece.
Commissioner MacCormac asked for clarification regarding the purpose of each letter. Chairperson Winters responded that her draft was for the Town to get more information going forward should these issues come up again as to how water planning is being done in the watershed. Commissioner Rieger’s draft raised issues of concern to the Commission and to the broader community, including not losing site of the Town’s relationship to the river and its importance to the Town, and as a conservation organization, stands in solidarity with conservation counterparts in neighboring towns who have the same kind of conservation issues with these goings on. Regarding whether these counterparts have sent out similar op/ed pieces, Commissioner Rieger responded that there have been demonstrations, numerous TV reports, and Colin McEnroe’s Sunday column, etc.
Chairperson Winters suggested tabling the correspondence until after the workshop.
Commissioner Rieger made a motion to table Correspondence.
Commissioner O’Connor seconded the motion, and it was passed unanimously.
1. Commission Education/Workshop: Legal – Policy/Procedures
Attorney DeCrescenzo summarized his understanding that wetlands violations were committed by the Town and must be resolved; one of his goals was to learn more about the history of these issues, which need to be addressed right away. He indicated the Town is both subject to the regulations and the torch bearer for the regulations; the word “violation” is a serious word, and the Commission’s jurisdiction must be respected and understood. His view was simply that a regulated activity in a regulated area requires a Commission permit for whoever is undertaking it. He indicated while it is difficult to enforce regulations against private parties, public agencies are not first in line to comply fully to regulations and set standards. In assisting the Commission, he believed part of the problem was a misunderstanding of what constitutes a regulated activity in a regulated area, e.g. digging up soil in a regulated area is a regulated activity. While Attorney DeCrescenzo did not anticipate resolving the issues immediately, he wanted to get started on coming to a resolution that works for the Commission and Town Staff, so that as part of standard operating procedure, Town projects undertaken in a regulated area will first apply for the required Commission permits. He asked for more information regarding the historic violations, which are generally in the PAC area, in order to determine what to do next. Chairperson Winters asked Commissioner Rieger to comment.
Commissioner Rieger indicated the Commission focus has been on Simsbury Meadows with things not as they should be and invited all Commissioners to add their comments. About a year ago then Staff, Rachel Blatt, was requested to catalog for the Commission the permits given for that area. He recalled for the Soccer Fields that the Town received a permit to fill 2 acres of wetlands with the compensating offset that the Town would create around the edge and by the parking lot a bio-infiltration swale of suitable wetland plants, and it was recorded in the minutes that the swale would be an enhancement of the wetlands. Attorney DeCrescenzo asked if engineered plans were reviewed by the Commission; Mr. Rabbitt indicated they were not; Commissioner Rieger recalled that there were drawings. While Mr. Rabbitt was not involved in the former process, he agreed some type of remediation should have occurred, but the reference to bio-swale is broadly defined and for enforcement to occur a judge would need to compel it.
Mr. Rabbitt explained he believes in being very detailed, so if a violation occurs, those details allow enforcement by a judge to prevail. Mr. Rabbitt noted that without that detail, if a bio-swale was to be built, a small ditch could be the result. Chairperson Winters added it was intended that Town Staff put in the bio-swale utilizing best practices at the time. Commissioner Beinstein expressed the conflict that if Town Staff is advising on the project, they violate, and are also in charge of enforcement, how does the Commission fine/make Town Staff responsible? Attorney DeCrescenzo indicated technically the Commission has the right to hire its own counsel, engineers and consultants, and raise a violation against the Town, but in his estimation that should be avoided and is not the best way to address these issues; he believed the Commission would like to see the Town do what it should have done with respect to an approval. Commissioner Rieger noted it is a symptom of the problem that the Planning Director says that nothing gets done unless a judge makes it happen and somebody wins/loses; he believed these problems should be resolved without a judge’s order or having winners/losers; if it is done right, the Town and everybody wins, and it needn’t be adversarial. Commissioner Beinstein added the preference is to not always deal with these issues after-the-fact. Attorney DeCrescenzo believed a judge would not be required for this, and he was asked by the First Selectman to deal with: 1) the historic issues being discussed; and 2) how to proceed in the future where the Town is treated like any other applicant with regulations applying to the Town as they do to anyone, where in sitting through an applicant’s presentation you cannot tell the difference between the Town or a private applicant. He noted with regulation standards applying to the Town the same as to anyone, good value is provided from establishing those standards and providing the enforcement people with more credibility. He summarized the focus would be to look back at what was approved, promised, and done in order to match up the promises with what was done; if incomplete details are found, they will be addressed given the Commission’s understanding of what was intended in order to create compensatory value.
Commissioner Rieger returned to the discussion of historic issues at Simsbury Meadows acknowledging they might not have all the details they want; he summarized in Year 2000 the permit was taken out for the boundless Rotary Club playground, but the swale was not present 2 years later. Mr. Rabbitt asked if the primary issue was the recollection that the primary purpose of the bio-swale was to prevent direct runoff from a field into the wetlands and a swale or urban depression would potentially either capture water for infiltration into the bottom, or the bottom vegetated to help clean water before entering the wetlands? Commissioner Rieger did not believe anyone present could recall that. Mr. Rabbitt discussed a potential solution to have an area on the easterly edge function with a bio-swale typically associated with renovation and providing a biological cleaning of water before it is released, which could be a shallow depression that is there but not in a perfect cross-section engineering plan shape. He recalled that the playground area consists of gravel, bank, and swamp and suggested working remediation into projects in the pipeline. Commissioner Rieger responded that was all constructive but felt that doing this level of detail for every item that needs to be discussed, we will not get there tonight. Attorney DeCrescenza proposed going back to 2000 to look at the Commission’s original approval to see what level of detail was presented and compare it to what is actually there in order to come up with an action plan. Chairperson Winters noted there was also concern that maps may show areas beyond what was approved were affected, including extension of parking lots.
Commissioner Rieger continued that the in 2003 there was a permit for 4-inches of gravel for the main parking lot and a new culvert at the stream put in on the existing farm road for cars to reach overflow parking and north of the farm road there was some clearing for the overflow parking. Commissioner Morrison added the permit for overflow parking was for clearing, grading and leveling of the area, but not any placement of fill. Commissioner Rieger noted issues include: 1) from material formerly provided by Rachel Blatt, and as shown on the recent wetlands soil assessment which the Town has not shared with the Commission, that those are all wetland soils, and yet what was requested and permitted was for work in the buffer or URA, so there seems to be at least a misunderstanding or possibly a misrepresentation of whether the work was done in wetlands or not, as all the work was done in wetlands but characterized as not wetlands; and 2) the drawing from that time shows a rectangle where the work was to be done in the buffer, but the area cleared was much larger than permitted, granted erroneously permitted since it was wetlands, and there was a deposition of gravel. Commissioner Morrison added a significant amount of gravel was deposited, including small pieces of asphalt and bricks. Mr. Rabbitt discussed that there are two classifications of wetlands – in the muck or swamp with associated vegetation and habitat; much of the area east of the Soccer Field in the 200 acres is alluvial soil and when you walk on it is sandy with gravel and not classic wetland muck and soils. Commissioner Rieger noted that it was labeled on the map used at the time as Merrimac Soil, so what it was, was known, but some Town officials and outside consultants pretend only federal wetlands are wetlands and State wetlands are the basis of the Commission’s jurisdiction. Commissioner Rieger continued in 2003 that to the southern side of the farm road, a similar parking area was created with no permit whatsoever, also located in wetlands, and cleared up to the federal wetland edge with no protective vegetative buffer and grated material deposited containing chunks of asphalt and brick, etc. Chairperson Winters added that it does not look like a wetland natural edge with quite a steep and rectangular drop to the wetlands. Commissioner Morrison explained the concern is not just because the material deposited is not natural, but this material frequently contains chemicals very damaging to wetlands. Attorney DeCrescenza expressed concern that grinding materials can contain petroleum products which when pulverized release that product and should not be anywhere near a wetland area; he suggested finding out what happened. Commissioner Rieger noted that before the parking lot activity aerial photos show the area was substantially vegetated with bushes and trees.
Commissioner Rieger continued that in 2005 the band shell had been built and they wanted to move ancillary buildings; it was represented at the time that there would be no activity within 20 feet of the wetlands; however, one of those buildings is less than 5 feet from the wetlands on what was believed to be a concrete pad – the Commission let them move the buildings, but not that close to the wetlands. Commissioner Rieger added the other building is 20 feet from the edge of standing water, but they have deposited all manner of materials behind that building, including old bricks, etc., and some of that material is dangling into the water and was believed to be arts world miscellany. Mr. Rabbitt clarified the first building was the small office close to the playground and the second barn-type building is southeast of the band shell and has a foundation. Commissioner Rieger recalled when they recently walked the area with the First Selectman they found all manner of stuff dumped behind there, and presumably from her efforts some of it has been cleaned up, but not all of it. Commissioner Beinstein noted there is a lot of gravel on the swamp edge and into the wetlands which seems to grow larger. Commissioner Rieger noted there was a complaint because they deposited more gravel last year as maintenance, but the Town’s initial position was that a permit was not required because they put gravel there before, albeit 10 years ago; the Town agreed at that time that such depositions of gravel were an additional activity.
Commissioner Rieger continued that what was to have been a pedestrian path running parallel to Iron Horse Boulevard as depicted in the permit was to come out opposite Jim Gallagher Way (then Mall Way) was characterized as an existing farm road, but was made to open up opposite Wilcox Street. He noted in the application that this pedestrian path would sometimes be used for emergency vehicle egress; Commissioner Morrison believed gravel was not allowed to be placed on the path, but it was. Commissioner Rieger explained that today it has become a 2-lane gravel road and instead of proper wetland vegetation, has a mown lawn sloping down to the wetland and is used by Dog Park patrons driving in/out; a current consultant for the Town believes it should become the main entrance to the PAC with additional parking spaces along the side. Commissioner Rieger indicated a pedestrian path was permitted, but a road was built with unlimited access, even though only emergency vehicle access was contemplated, resulting in much more severe impact on the wetlands than it ever should be. Mr. Rabbitt discussed that while the permitting process was not followed in construction, if there is a concept plan containing that main access road on it, isn’t the Town entitled to come in and seek a permit for a new road with potential mitigation associated with it in order to negate potential impacts and potentially resolve some of the other issues? Commissioner Rieger agreed the Town could seek a permit, but there should not have been an existing road – the footpath was permitted although it isolated some of the wetlands inhabited by reptiles and amphibians that need to migrate, which they do more easily across a footpath than a 2-lane road with traffic on it.
Commissioner Rieger continued that in 2010 citizens brought to the attention of Howard Beach, the former Compliance Officer, and then it came to the Commission’s attention that the Town had built a substantial gravel road on the Baker property; Mr. Beach’s inquiries revealed that the Town built the road so fire trucks could enter, and no permit was taken out. The Commission asked the Town to present itself to discuss this matter and the Town did not do so, and the Commission asked again that the Town present itself to discuss the matter and the Town again did not do so, after which the Commission’s short attention span dropped the ball, but the violation has been there since 2010 and the Town has flouted the law.
Commissioner Rieger discussed the issue of the Town’s request for the Dog Park permit, and it was said the Dog Park shape could not be finalized at the time of the permit until they were on the ground and it would be in the URA surrounded by a vegetative buffer, and not in wetlands. Commissioner Rieger noted a conceptual drawing was provided showing a rough shape, but the actual shape built has a big “L” shaped piece to the northwest much bigger than contemplated in the drawing and in fact built in wetlands. He noted that the recent Town map, that has not been shared with the Commission, shows the wetland line going right through the Dog Park, so contrary to all representations the wetland was filled and the Dog Park built right in the wetlands. Attorney DeCrescenza asked Staff about the status of a map amendment; Mike Glidden responded an official map amendment would need to be done and flagging was done at the Town Engineer’s direction as part of the Senior Center Project. Attorney DeCrescenza believed a map amendment would be forthcoming. Commissioner Rieger stated that the Commission should not have to wait for the Town to come forth with a map amendment because the Town knows of the Commission’s abiding interest in this area. Attorney DeCrescenza confirmed that the Commission would like to see the map amendment; Commissioner Rieger responded they would like it sooner, rather than later.
Commissioner Beinstein added to the list of concerns the continuing wider path development through the wetlands with Public Works requesting a retroactive permit to put in a culvert and expressed the need for the Commission to be involved; the request for a retroactive permit was in response to a violation notice to the Town. Commissioner Rieger had two additional concerns: 1) that the Commission has known about these violations in some detail for a pretty long time and the Commission should probably be embarrassed; the regulations in 13.4 lay out what should be done in the event of a violation which has not been done, and if the DEEP Commissioner finds the Commission has not done its job in enforcing the law, he can remove the Commission’s authority and assign that job to the State, which would bill the Town for its time and effort. Commissioner Rieger cautioned that may seem remote and unlikely, but there are folks in Town who care a lot about this stuff and are smart, and it is not inconceivable that they would petition the DEEP Commissioner to take steps to make the Commission do its job, so fooling around for very long with workshops exposes the Commission to some risk – one possibility would be to take the steps provided in the regulations and sit on the violations in a more formal way and the Commission should at least think about that. Commissioner Rieger’s second concern related to some smart people in Town regarding the Town’s desire to file its application for the Senior Center with the Commission before the violations are noted, so that when the violations are noted they look like an inappropriate reaction to the Senior Center filing; he would feel pretty cheated if that were a strategy being worked out and that application came to the Commission out of the blue in a way that compromised the Commission’s process because this process has been going on for a year.
Attorney DeCrescenza indicated it is correct that the Commission’s authority is delegated from the State and the Inland/Wetlands Act with state regulations administered and enforced to this Wetlands Agency. His plan was to meet with the First Selectman to address each of these areas and return to the Commission with a game plan. Attorney DeCrescenza and Mr. Rabbitt had not heard of any plan to circumvent the Senior Center application or permit violations. Commissioner Rieger noted that he had made no accusations. Mr. Rabbitt reviewed his background working with over 30 municipalities in Connecticut, Massachusetts and Rhode Island and that he is very detailed and dots i’s and crosses t’s and his goal is to move forward; he agreed permits should have been applied for and recommended Staff prepare a cross-section for Simsbury Meadows to determine compliance/non-compliance. He is working as the Commission’s Staff to prepare for success which may require details, cross-sections, and remediation plans in order to deal with any violations, but it is difficult to go backward if the file detail is inadequate. He asked that the Commission grant him some time to come up with a plan to get Town departments in good standing and make them aware there is a Town permitting process from which they are not exempt,
Attorney DeCrescenza requested he be on the Commission’s Agenda for the 3/15/2016 meeting and noted it boils down to a culture of respect and that the public should not be expected to comply with any rules the Town does not comply with itself. Mr. Rabbitt informed the Commission that he and Mike Glidden are the Commission’s staff and invited communication prior to, during or after any proceedings – it is not considered ex parte. Commissioner Morrison noted the focus has been solely on Simsbury Meadows, but there may be other parts of Town where a Town department has engaged in regulated activities that have gone unpermitted or unnoticed and he suggested someone in the Town take a look at whether a permit was obtained or should have been obtained, which he believed would be a tremendous act of good faith on the part of the Town. Mr. Rabbitt’s goal was to move forward and believed they have learned from the past; and if there is anything causing environmental degradation, they will flag it. Commissioner Morrison expressed that it is not desirable to force the Town to deal with these issues, but if past violations for Public Works or other Town departments come forward in the future, he would be a lot less forgiving. Attorney DeCrescenza indicated they would look back, but Public Works projects, e.g. major culvert replacements, typically take some planning and permitting, unless something like an emergency occurs, and he said it is about respect, not being caught without a permit.
Commissioner Rieger recalled that Mr. Rabbitt talked at the last meeting about enforcement and recognizing you don’t really know what your permit says. He suggested considering a practice of not issuing the permit, but having the 3rd resolution instruct Staff to draft the permit for the Commission to review at the next meeting which would allow the Commission, having just read the minutes, to look at the draft permit in light of conversations at the meeting and to see whether the draft permit covers the important issues or something thought of that ought to be a condition. He suggested this could be the normal way to do business. Commissioner Rieger noted that Mike Glidden has done a wonderful job of bringing standard and special conditions for applications for Commission consideration. Mr. Rabbitt indicated his normal practice would be to draft motions and if issues arise at the meeting those conditions could be added, which provides a better way to remember the items that should be in the motion. He would assure motions are prepared for the Commission with the condition that something like a bio-swale or catch basin with a silt sack could be added to the plans so that when a final set of plans comes in, they have that level of detail – he will provide the Commissioners with a sample for a complicated project, but not all projects are as complicated and may not require waiting until a second meeting. The Commissioners believed it would improve and enhance the quality of their work product if they had more time to think about an application/permit because not everything may have been thought of at the meeting.
Attorney DeCrescenza could not promise final resolution at the next meeting, but will keep the ball rolling in order to get there. Chairperson Winters thanked Attorney DeCrescenza for coming and looked forward to seeing him at the next meeting in two weeks.
1. Correspondence
The Commissioners resumed discussion of the Niagara Bottling letter. Commissioner Rieger indicated his draft position paper would go to the Valley Press, the Hartford Courant, and brother conservation organizations in neighboring towns. Commissioner Beinstein liked the position paper as a strong statement and also liked the letter to the First Selectman. Mr. Rabbitt felt more comfortable writing a letter to Bloomfield to the Chairs, the Planning Director, Ed Reiner; Scott Jellison at the MDC; and cc to DEEP, but noted those regulatory agencies have decision-making authority. Commissioners Morrison and Beinstein believed a secondary purpose of the statement would be to create awareness in the general populace. Commissioner Rieger believed the people suggested to write to ought not to be in a position to unilaterally make this decision, but it needs to made in a regional or larger context, and the Commission has done this sort of thing before.
Mr. Rabbitt, as a Planner, was skeptical of newspapers because written material provided to them is not always what you see in print; he has been both a benefactor and victim of that and could not count the number of times he called editors after meetings offering copies of meeting tapes where their reporter was present for only ½ the meeting and the article made the wrong assumptions and reached the wrong conclusions. Mr. Rabbitt noted there was a fine line for the Commission between their non-regulatory conservation role and regulatory Inland Wetland role. Commissioner Rieger responded that the Conservation Commission has no regulatory role whatsoever. Mr. Rabbitt explained that the Conservation Commission writing an op/ed piece to a newspaper is a slippery slope for a town commission; it is great for an individual, but you may have to recuse yourself if you have established a position on a particular matter. Mr. Rabbitt recommended writing something to Bloomfield and the associated regulatory agencies, as he has done for various projects, rather than a newspaper. Chairperson Winters was uncomfortable with the press release aspect from a personal point of view because in the past she has typically received many phone calls and may not feel the strength of the letter’s language. She apologized for not bringing the statement forward but it may have been self-protective as she did not wish to address bottles, etc. because she believed that to be beyond the Commission’s purview. While there was a lot she agreed with including that the Commissioners should be advocates, she would word some things differently, which is why she redrafted the letter; however, she was uncomfortable with the Commission releasing press releases and believed they should address an agency with jurisdiction and it is her name that would be on the letter. Commissioner Morrison was not sure that would be effective. Chairperson Winters explained she felt skittish around the press as she has experienced being quoted out of context.
Commissioner Rieger believed there was not a majority in favor of the statement and suggested moving on. The Commissioners discussed who it would be most effective to send the letter requesting more information to and suggestions included: John Hampton, Senator Wickos, Bloomfield’s senator and representative, and DEEP; however, some Commissioners were not optimistic anything would come from the letter to the First Selectman. Chairperson Winters served on the State Water Allocation Task Force and while State water planning is not robust and an incredibly difficult issue, she felt the Commission should still try. Commissioner Morrison noted the letter asks for more information and a master plan, but says nothing specific about the bottling; Chairperson Winters noted the Commission has no jurisdiction over bottling. But going forward she would like to emphasize the need for State water planning regarding various uses of water without any consideration for the low flood conditions in the Farmington River. Commissioner O’Connor wanted to make the letter as effective as possible and to consider restructuring the letter. Commissioner Morrison suggested revising the letter to say that without a plan the Commission opposes construction of the bottling plant; Commissioner O’Connor suggested redirecting it to a different entity. Chairperson Winters indicated while the Commission does not know what the impacts will be on Simsbury, it will be negative. Commissioner MacCormac commented that good work has gone into developing both drafts, but should be thought through more regarding the letter’s audience and whether there should a broader release of information so that more people become aware, as well as making the Commission a source of information; Commissioner Rieger added there is no way to be a source of information unless the information is released. Chairperson Winters believed the Commission currently has assumptions, but does not have the information.
Commissioner Rieger made a motion to table both items.
Commissioner O’Connor seconded the motion, and it was passed unanimously.
V. APPROVAL OF MINUTES of the February 16, 2016 regular meeting
Commissioner MacCormac requested his name be spelled correctly.
Commissioner O’Connor seconded the motions for Application #16-02.
Jamie Rabbit, Director of Planning and Community Development, needed to be added to the attendee list.
Commissioner Rieger provided extensive revisions to the minutes in Attachment 1 and Chairperson Winters tabled the minutes for further discussion, given the substantive comments, and directed the Commission Clerk to provide a new set of the 2/16/2016 minutes for review at the next meeting.
Mr. Rabbitt clarified he was the Director of Planning and Community Development, was Mike Glidden’s boss, and part of the management team for the Town of Simsbury as a department head, and he was at this meeting as the Commission’s staff and was not representing Public Works. If he is present representing Town departments, that would be made very clear. He is also certified by DEEP as an enforcement officer and all four staff members within the Planning side of the Department are certified Wetland enforcement officers. His motions were a clarification of Mike’s letter and were in the form of a motion, which he prefers, versus language contained within the body of text; applications are automatically accepted by statute and the clock starts to run upon receipt by the Commission at a regularly scheduled meeting. He noted meeting minutes are not intended to be a transcript of the meeting; reference to specific lines can be checked on the tape and only what is recorded can be printed. Chairman Winters noted the tape is the record and stated it would be good to clear it up as much as possible. For clarity, Mr. Rabbitt confirmed that speakers should be identified in the minutes. Commissioner Winters concluded that changes will be made to the minutes and addressed at the next meeting.
Commissioner Rieger advised the Commissioners that the BOS adopted last week changes to Chapter 21 of the Town Code, whereby if it is proposed that Town open space be disposed of, it will be referred to this Commission and some others for a recommendation; the Commission has 60 days to reply and if there is no reply, it will be deemed that this Commission recommends disposal. The Commission needs to think about how it will deal with that when the call is received and the clock starts.
VI. ADJOURNMENT
Commissioner O’Connor made a motion to adjourn the meeting at 9:35 p.m.
Commissioner Beinstein seconded the motion, and it was passed unanimously.