Conservation Commission / IWWA Minutes 04/05/2016
CONSERVATION COMMISSION/INLAND WETLANDS
AND WATERCOURSES AGENCY MINUTES
APRIL 5, 2016
REGULAR MEETING
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 Charles Haldeman, Andrew O’Connor, Craig MacCormac, Jim Morrison, Donna Beinstein, and Donald Rieger. Also present were Jamie Rabbitt, Director of Planning and Community Development; Michael Glidden, Assistant Town Planner; Janis Prifti, Commission Clerk; and other interested parties.
ROLL CALL
Appointment of Alternates
Chairperson Winters seated Commissioner Beinstein for Phil Purciello and Commissioner Haldeman for Darren Cunningham.
APPLICATIONS
Old Business
Discussion and Possible Action:
(CONTINUED FROM 03/15/2016) Application #16-05, of Joseph Campolieta, Applicant; Joseph Campolieta and Nancy Grandin, Owners; for an addition to the existing residence on the property located at 3 Browngate Lane (Assessor’s Map C03, Block 203, Lot 032). Zone R-40 OS. (received 03/01/2016; decision must rendered by 05/05/2016)
Application #16-05 was read into the record.
Lenny Sapia represented the Applicant’s request to put in a 17x22 foot addition for a family room with porch above it on concrete piers with a 10-inch wall and 20-inch footings. Mr. Sapia indicated the area to be excavated is part of the yard; it would be 45 feet to the wetlands and they would be within 17 feet of the house with a 25-foot setback to the wetlands. Regarding a map showing the wetlands location, Town Staff indicated Exhibit 3 shows a shaded area of inland/wetland soils based on the official map and it is actually 10 feet to the wetland edge from the proposed addition corner.
Mr. Sapia clarified there would be full basement construction to match the existing ground level walkout from the house to the addition; given the slope, about 1/3 of the basement would be underground toward the house front and 1/3 in back matching grade; and from where they begin digging to the edge of the grass would drop down about 4 feet. Commissioner Rieger asked whether the addition being within 10 feet of the mapped wetland requires a delineation; Mr. Glidden responded it is within the Commission’s discretion, e.g. a recently-approved application on Lucy Way is a similar distance; it helps in the field from Staff’s perspective to identify the line to the contractor; also, material submitted for the proposed addition does not clearly illustrate grading, so if the pad runs 40-50 feet from the house, it would be in the wetlands and in violation. The Commissioners noted the maps are not precise and the proposed addition is close to the wetlands, so delineation may be required; Mr. Glidden agreed clear delineation in the field helps control construction creep.
Mr. Rabbitt indicated it would be beneficial to have a 2-step process, including: 1) determining the potential delineation of the wetland edge in relation to the proposed construction area; and 2) even more important for Staff site visits would be to have a grading plan associated with the foundation and full basement footings - typically 38-48 inches below grade; associated trench; foundation drain going to daylight and its location; and whether there is any grading associated with the back filling plus or minus 10 feet; Staff can then measure the addition size and the grading plan size in order to field determine the wetlands hard edge, which could be reported back to the Commission in order to determine the need for a regulatory determination; if a clear edge cannot be defined, delineation would likely be warranted. Mr. Rabbitt suggested Staff meet with the Applicant in the field to determine from the grading plan the wetland hard edge and whether delineation is needed.
Commissioner Rieger made a motion to table Application #16-05 pending receipt of a grading plan and wetlands delineation with the understanding that Staff may waive the wetlands delineation if they find that the grading plan provides sufficient delineation.
Commissioner O’Connor seconded the motion, and it was passed unanimously.
Application #16-07 of Carrie and Patrick Roden, Owners, for the construction of an addition to the existing residence on the property located at 48 Long View Drive (Assessor’s Map D13, Block 318, Lot 015). Zone R-40. (received 03/15/2016; decision must be rendered by 05/19/2016)
Application #16-07 was read into the record.
Mr. Roden presented the Application stating they loved both their new property and the Town and were proposing adjustments to the property to fit their growing family and now know there are wetlands on the property. Mr. Roden proposed adding space to their 1950’s ranch in the garage area over the existing driveway and they are adding a 2nd floor for bedroom space above the main house; their septic system allows them to have up to 4 bedrooms. Mr. Roden indicated the driveway slope is gradual and increasing to a 3-car garage would add 10-15 feet; the large square driveway is on the west side of the house; the addition would be on the northwest side of the house. Mr. Rabbitt noted the Town GIS system indicates building would occur in wetlands where the driveway currently is located. The Commissioners added this house was built prior to the implementation of wetland regulations. Mr. Roden indicated initially there would be no additional work or expansion of the large square driveway, but after discussion with the Commissioners, it appears the driveway would be expanded for the 3rd bay. The Commissioners noted there is Ethel Walker land in the woods behind the property. Mr. Roden is considering putting up a basketball hoop in back of the garage for his 3 sons to use; while the garage would not have a 2nd story, it would provide storage.
Regarding yard drainage, Mr. Roden indicated everything on Long View slopes downhill toward the wetlands. Mr. Rabbitt brought up on the computer a map of the Long View Drive area, also showing the deep hydrology wetlands areas which contain a good portion of the road system – the gray area is somewhat poorly drained soils and the purple area is very poorly drained soils. Mr. Rabbitt noted buildings on full foundations require footing drains but was not certain that would be required for the slab frost wall here. Chairperson Winters noted this wetland had not been functional for some time.
Regarding interior construction, the Applicant indicated they may be knocking down some walls, but not load-bearing walls. Commissioner Morrison noted the design drawings provided seem to match the current footprint and show the garage and basketball court. Commissioner Beinstein asked for clarification of the driveway/garage layout and in Exhibit 3’s floor plan if there more house? Mr. Roden responded there was not.
Mr. Rabbitt clarified on the plan the proposed addition with garage doors facing north, and a new driveway connecting to Long View Drive, but Mr. Roden indicated it was actually the current layout and they would only be adding a bay to the existing 2-car garage and showed its location. Mr. Rabbitt noted it was not clear what the Commissioners would be voting on.
Commissioner Morrison asked about the deck which Mr. Roden indicated would not be enclosed; his wife developed the design but was not present. Mr. Rabbitt suggested working toward more clarity for the next Commission meeting regarding the Applicant being in compliance.
Commissioner O’Connor made a motion to table Application #16-07 to the next meeting pending Staff discussion with the Applicant, a grading plan, and accurate site plan.
Commissioner Haldeman seconded the motion, and it was passed unanimously.
Referral from Board of Selectmen: Modifications of Open Space and Conservation Easement, Tariffville Water Company
The BOS Referral was read into the record.
Shelby Beauchemin of Woodard and Curran represented the Tariffville Fire District Water Commission and presented picture boards of the current water storage tank put in 80+ years, and said following a preliminary engineering report that they determined the tank cannot be rehabbed. Ms. Beauchemin proposed installation of a new water storage tank located a little further from the wetlands to the right of the existing tank, which would remain online during the new tank’s construction; once the new tank is online, the old tank would be demolished to below grade, the area filled, and loam put in and seeded returning the area to its natural condition. She provided photos of the area during construction indicating some clearing of forested land would be required; an existing access road (Woods Road) used for the Eversource easement over Laurel Hill is also utilized for servicing the tank and would be maintained – the land formerly owned by the Gerston Estate was purchased using an open space grant from the Department of Energy and EPA and currently has a recreational easement.
Regarding the proposed project, Ms. Beauchemin indicated they would be within 75 feet of wetlands where they connect the tank to the existing water main; the project is planned to be completed by the end of December 2016; they are going through the process of getting public funding through the Connecticut Department of Public Health. Mr. Glidden noted this was referred to the Commission by the BOS for modification to the conservation easement and there would be a future application to the Commission for regulated activities for tank construction. Mr. Rabbitt explained that under the new ordinance, the BOS referral is required to come to the Commission; in this new process, referrals will come to the Commission from the BOS regarding conservation, and within about a week they will apply to the Zoning Commission, and also to the Conservation Commission in its wetlands regulatory role. Commissioner Rieger added this is the process he previously mentioned several times, which in terms of the current Town Code is a disposition of an interest in real property and analogous to a sale of real property, and the BOS wants the Commission’s recommendation regarding grant of that easement, so the Commission needs to develop a process to deal with such requests for recommendation.
Ms. Beauchemin showed the location of the existing easement in black with undetectable water main through the woods and square parcel around the existing tank; Tariffville put in a new emergency water main a few years ago piggybacking on Eversource putting in a new gravel road, which provided for a more economic water main installation; the proposed easement in red includes the new water storage tank and tank drain; and in navy blue is the proposed temporary construction easement – they will demolish the existing tank with the area extending further out and some regrading and excavation areas with clearing for locating their construction trailers - they actually cast the tank concrete walls onsite. Ms. Beauchemin proposed keeping the existing easement open, or else they would only have one way to access the storage system, which is vital to the system in the future; while they would currently cap the pipe, later on a potential construction method called “pipe bursting” could allow them to sleeve through the old line to provide a secondary access point; for ease of operation, they would also like to keep open the easement (Parcel E in the open space documents) around the old tank. She indicated while the road in red has been there a long time, they do not currently have an easement for that road, nor does Eversource it turns out. She indicated existing pipe goes up hill with wells pumping up to the water storage tank at the top and the tank provides pressure modulation and feeds down into the system. She confirmed that the existing tank is on a concrete footing and they would demolish to a foot below grade, fill with loam, and seed the top. Mr. Rabbitt noted they originally looked at re-vegetating the area, but looking out 40-80 years someone will be asking to de-forest that location for a potential future tank of unknown size/height.
Commissioner Rieger asked about treatment of known PCBs in the existing tank and whether they will bury PCBs when they bury the pad. Ms. Beauchemin responded they have a demolition spec that speaks to both PCBs and asbestos, but they have not done testing for PCBs, and prior to demolition everything coming out is to be treated as potential hazardous material. Commissioner Rieger asked if they would be burying PCBs, and if so, is it an issue? Ms. Beauchemin did not have a clear answer. Commissioner Morrison asked if they tested for PCBs? Ms. Beauchemin responded they are treating the waste as if it could be hazardous. Commissioner Morrison asked if it would be managed as hazardous waste under TOSCA? Ms. Beauchemin responded that it is not technically a hazardous waste site and they may not have PCBs but it will be disposed of at the proper level. Chairperson Winters thought that would come up before the Commission during wetlands permitting. Mr. Rabbitt indicated it would come at either Wetlands or the Zoning Commission. Commissioner Morrison believed it would be better if it came up now regarding granting the easement and was not sure the Wetlands Commission will be able to require testing as part of the construction work onsite. Ms. Beauchemin responded they could provide the specification they use for PCBs and asbestos. Commissioner Morrison asked without testing it, where will the material go? Ms. Beauchemin responded it would go to a specific landfill. Commissioner Morrison asked what was the purpose of not testing it because disposing of it as PCB hazardous waste is much much more expensive than to dispose of it as non-hazardous building construction material. Ms. Beauchemin believed the contractor would be testing it as they would not be doing testing, and if there were PCBs, she assumed they would not exceed the threshold but she will have to get back to the Commission on that. Commissioner Morrison explained in terms of easement concerns about paint chips falling on the ground and getting into the soil, tanks can shed dust with quite a halo around them; and if there were no testing, that material would not be managed, disposed of, or addressed. Ms. Beauchemin will provide the contractor’s specs. Commissioner Rieger added the Commission is not in a regulatory posture; and given the substantial materials provided for review at this meeting, he suggested the Commission study the material with 60 days available to think about both the recommendation for this proposal and the process for coming to a recommendation.
A member of the Tariffville Water Commission indicated the water testing over the years has revealed no PCBs or asbestos, etc. in the consumer confidence report he has received over 38 years. He noted they do not treat the water at all; in the morning when the pumps are running he gets his water from the well and at night when the tank is full, water probably comes from the tank. Commissioner Morrison explained the issue is that PCBs were commonly used in tanks of that era, especially in paint and caulk on the outside of the tank. The Water Commissioner recalled only fiberglass and epoxy lines on the unpainted concrete tank outside and it may be that any PCBs on the inside leached into the water 40 years ago and their water may be the cleanest in the U.S. Mr. Rabbitt confirmed there are 60 days to consider the materials received.
Commissioner MacCormac made a motion to table the referral to give the Commission sufficient time to digest the materials received.
Commissioner O’Connor seconded the motion and it was passed unanimously.
New Business
Receipt of New Applications
Mr. Glidden described 3 applications received:
A residential application for 35 Fernwood proposing moving an existing above-ground pool and grading in the backyard along a stream;
A Parks and Recreation proposal for a warming shelter at Simsbury Farms Ice Rink at the northern elevation of the hockey rink within existing pavement; and
In addition to the previously permitted placement of rip rap granted to the Water Pollution Control Authority for river bank stabilization along the right of way along Winslow Place and Terrimac Lane, they are also coming in with a new application to install sheeting along the bank. Tom Roy explained that following recent heavy rain, the Farmington River water rose within a foot of the bank and upon inspection they found portions of the bank collapsed into the river; that same night a Staff member stayed onsite checking the bank every hour because once erosion begins they are not sure how fast it will move. Mr. Roy noted their permit to armor the bank has been pulled and is days/weeks away, but they have to wait for the weather to warm enough to relocate the eastern pond mussel. Mr. Roy indicated bank movement has since calmed and they have put in electronic monitoring systems which will tomorrow begin sending a radio signal to Staff if soil moves; out of an abundance of caution they are looking at putting in steel sheeting a maximum of 400 feet along the bank which would be driven below grade and not visible and would be removed when the bank is armored; or they may use sheeting in localized sections with a contractor ready to respond within 12 hours. Mr. Roy wanted the Commission to know the current status of the bank.
Commissioner Rieger asked if Mr. Roy talks with MDC about the river level and if there is opportunity to moderate water level. Mr. Roy receives frequent email communications from MDC headquarters which controls the flow and noted about half the water comes into the area and he will work with MDC regarding taking down some of the peaks. Town Staff noted 2 caved-in areas that will come up in the new application submitted - one is a sheer wall where the bank dropped 2 feet. Mr. Roy indicated they would carefully pre-excavate the areas keeping adequate separation between the bank and pipes using a vibratory hammer, rather than a driving hammer, keeping to the 25-foot designed depth, but they would prefer to get the armoring in soon. Town Staff added if it stays warm and they receive the Army Corp permit to move the mussels, they could do the sheeting at the same time.
Mr. Rabbitt clarified this new Application was filed yesterday and the official date of receipt is this evening, and given the appeal period to petition for a public hearing, it would be taken up for action at the next meeting; however, in the advent of substantial rain and change in conditions with a million gallons/day carried by the trunk line, they are prepared to move forward with corrective action. Mr. Roy reconfirmed preparations are in place for a critical emergency so that nothing negative happens; in addition to potential sheeting, they have the ability to bypass that pump section, and soil gauges should be fully operational tomorrow.
GENERAL COMMISSION BUSINESS
Commission Education/Workshop: Legal – Policy/Procedures
Town Attorney, Bob DeCrescenza joined the meeting regarding a series of previously-raised issues for Simsbury Meadows and indicated Staff has followed up on a number of those issues with further work to be done. Mr. Rabbitt reviewed they are looking at activity that occurred on Town land and as individual events; their primary focus in the permitting process has been the Simsbury Meadows trail system and Staff has re-walked that and looked at aerial photos from 2015 back to the 1930’s to see where the system has been; after walking the property, he has 140+ photos and needs a few more to fully vet and articulate what is out there for potential action. Mr. Rabbitt spent substantial time in that area and given and area of trail systems and the complexity of vegetation, Town Staff may have moved in directions they need to back out of an area putting the trail system in its historic location. Mr. Rabbitt crawled on hands and knees through invasives to find where the old trail was and Town Staff working in full canopy likely made an error in the field, which he believes can be corrected; 200-400 feet of trail system would be affected and corrected. Mr. Rabbitt noted in photos of that area provided by Commissioner Rieger that to the west of where Mrs. Rieger is standing in those photos there is a topographical change of 2-3 feet and she was in an old burrow area that may have been associated with some urban berms associated with 4 lagoons put in; it appears one trail followed the tree line north, one trail was west of the burrow, and another historic trail further west – Staff split the difference and went into an area perhaps they shouldn’t have and need to back out of. Mr. Rabbit indicated they are developing cross-sections for a trail system and will identify remediation of that area and relocation of it as shown in some aerial photos; there is a “western pass” and an old field west of the Pine Grove just south of the sewer lagoons – in the middle of that field was an old trail system, but that is not what Staff is recommending as it would be too close to open water and the rookery. Mr. Rabbit noted there is a secondary road just west of the burrow pit identifiable in the aerial photos which he located on hands and knees crawling under invasives on the rutted road system; a third road system associated with that field was tight to the Pine Grove and the 1930’s through 2015 aerial photos show the hedge of Pines grew up the edge of that road system which was overtaken by the size of the Pine Grove, so that is likely not an option without jeopardizing the Pine Grove.
Mr. Rabbitt anticipated providing more information to the Commission in the next 2 weeks and planned to flag the historic road on the walk. Commissioner Rieger did not believe the historic roads were particularly relevant as the wetland have changed where formerly you could drive a farm vehicle from Simscroft Echo to the sewage lagoons due east, but it has been decades since you could do that; a marsh is now present that was not there decades ago and there is nothing to the west of the disputed trail segment, which is too wet to support a trail as pointed out in Dr. Fielding’s submitted written testimony.
The Commissioners agreed to reschedule the site walk in 2 weeks at 5:30 p.m. Mr. Rabbitt clarified under FOI rules that the site walk needs to be done in silence if the public is present, conversation cannot be held with the public, and the public cannot have conversations with Staff; the purpose of the site walk is to determine visually what is out there and any questions to Staff would be to show a location on a photo; if there were any conversations or sidebars with concerned citizens, he would be forced to request the Chair adjourn the site visit to the Commission meeting; copies of aerial photos will be available to site walk attendees. While members of the general public may not understand the rules, Chairperson Winters planned to make it clear prior to beginning the site walk.
Attorney DeCrescenza indicated they met with the First Selectman about 3 weeks ago and she charged them with doing an investigation and providing a report with recommendations for each item. Mr. Rabbitt reviewed he walked between the access fire road and WPCA and coming back into the path and the east edge of the soccer field, and south edge of the playground and PAC office regarding whether a bio swale or grass areas are there; they are doing due diligence to determine what is there and what the permit said; also for the areas associated with the overflow PAC parking lots east of the soccer field and what is present vs. what was permitted, including material placed in the creation of those parking lots; creation of the dog park and fence; and the whole secondary road system from Iron Horse behind the dog park back into the PAC; they are working on these issues and keeping Public Works in the loop as they progress.
Commissioner Morrison asked what the schedule is for doing the evaluations? Mr. Rabbitt noted if he had more full time environmental staff given daily work changes and fires to put out; however, they work as time allows and the trail system is the current priority as they enter the growing season April 15th - he would like to tackle issues related to vegetation in the next 2 weeks; the other more historic areas have been present for a while and are also priorities, but he cannot say definitively they will be wrapped up in the next 2-4 years - they are picking away at them. Commissioner Morrison commented that while other departments are involved, it sounds like Mr. Rabbitt is personally taking on much of the investigation responsibility. Mr. Rabbitt agreed noting there are 3 primary environmental Staff in his office; Attorney DeCrescenza believed they have the appropriate expertise and know the requirements. Commissioner Morrison asked if recommendations would be made by Mr. Rabbitt other than complete restoration of all these areas? Mr. Rabbitt confirmed Staff would make recommendations and some would be for restoration and some potentially to pull out of some areas, e.g. as recommended this evening, moving the trail east/west to a drier location – there is a substantial period of time during the summer/fall that the trail system is dry and there is a balance between opening the area to residents and respecting the trail system when it is in a wet condition. Mr. Rabbitt gave the example of walking from WPCA into the wet field with people walking around puddles allowed to develop and thus creating a new trail, so if they deal with the treatment of those cross-sections he is confident they can keep people on the trail systems; along the river between WPCA and the northeast field there is no intent to go into the area and over time they developed single-track hiking/walking trails but not multi-use; he will be making recommendations.
Commissioner Morrison commented that it would be good to make trail areas top priority given recent disturbance which can be quickly addressed with re-vegetation potentially having a big impact. Commissioner Morrison commented that areas close to the PAC have not had recent disturbance and the issue may be to allow what is there to remain. Mr. Rabbitt agreed that some actions may potentially cause more short-term disturbance and those recommendations can be discussed. Commissioner Morrison added that anything other than restoration of the entire area would require a permit from this Commission and asked if Mr. Rabbitt would prepare the permit? Mr. Rabbitt responded he would not; Attorney DeCrescenza indicated the department undertaking the work would be the Applicant. Commissioner Morrison believed because this would be a retroactive permit, the applicant should be whoever originally did the work. Mr. Rabbitt gave the example that on the east edge of the soccer field aspects of the bio swale could be debated, but there is a grass buffer between managed fairway rough, and wetlands and whether you talk to engineers about the definition of a bio swale causing 10-20 feet of disturbance next to the wetlands and re-establishing turf in that area or is their function similar to what a bio swale would do. Mr. Rabbitt, as the Commission’s Staff, will make recommendations of what could/could not be done – the temporary disturbance may be worth it for a long-term goal, e.g. there is no grass buffer area behind the PAC office, there is gravel to the edge of the wetland and vegetation may need to be re-established, but east of the soccer field may be functioning similar to a bio swale.
Commissioner Morrison noted that recommendations will be made to the Commission, but there is no Applicant. Attorney DeCrescenza indicated the report and recommendations would go to the First Selectman regarding actions to be taken by Town departments, and if those corrective actions require permits, they will come before this Commission. Commissioner Rieger indicated if the Commission finds violations have occurred, then the Commission can issue an order requiring remediation and the Town has 10 days to appear and respond to the order and the Commission can decide whether or not to modify its order; the Commission can be the moving party and not just a recipient of a report; the Commission is charged with administering these laws, and if they are violated, it is this Commission’s responsibility to deal with that. Attorney DeCrescenza responded he was aware of the Commission’s jurisdiction in that area, but they are offering a different approach leading to probably quicker remedial action; if the Commission is unsatisfied with the report or recommendations, then actions can be taken that its jurisdiction allows.
Commissioner Morrison expressed appreciation for Mr. Rabbitt’s significant time thinking about these issues given his many responsibilities, and it sounds like 2 weeks from now one of the six will be on the Agenda for action, e.g. the bio swale around the soccer fields, or if there is time to tackle a more complex issue. Mr. Rabbitt responded they are doing due diligence on the six issues and one may move up in priority for action; currently, the rain events are influencing his access to the area with the associated difficulty of tying down definitive time frames; whether or not the access road between Iron Horse and the PAC belongs there and its allowed width should be a much bigger conversation than putting a 10-15-foot strip behind the PAC office. Attorney DeCrescenza added that there may be an opportunity for interim reports and to get some items off the list. Commissioner Morrison noted a formal presentation may not be required if there is no application, a memo with bullet points or a power point presentation would be fine; he noted that recently the Commission has worked to drive these issues with the Town and would like to set a hard schedule with deadlines to keep the Town accountable. Mr. Rabbitt responded he has been with the Town for 4 months and is working diligently to move forward. Commissioner Morrison requested the Commission receive one set of recommendations at the meeting in 2 weeks; if one item is addressed every 2 weeks, it is still 3 months to get through all of them. Mr. Rabbitt agreed to dealing with the bio swale and the swale buffer area associated with the PAC area; Attorney DeCrescenza felt the bio swale could be one for the next meeting, but if there is as reason they cannot do it, they would advise the Commission - the site walk would also be a great step forward.
Commissioner Rieger discussed the 2/16/16 Fielding memorandum and when she spoke at the public meeting Dr. Fielding said she would not repeat her written testimony handed in; however, the Commissioners never saw her written testimony – it was not read out or distributed – and the Commission reached a decision without having seen it; and he believed there should be a procedure to assure that does not happen again. Chairperson Winters believed that Dr. Fielding meant she did not wish to repeat things brought up in the meeting discussion by others, and agreed such future information should be seen in a timely fashion. Commissioner Rieger added that Ms. Coleman sent Mr. Glidden an email on Tuesday apologizing for being unable to attend the public hearing and asked Mr. Glidden to read her testimony into the record; while Mr. Glidden may not have received the email, he felt there should be vigilance about such things. Mr. Rabbitt explained procedurally that he only receives emails pertinent to planning and zoning and general public emails sometimes do not make it through the system. Mr. Rabbitt indicated from a policy standpoint that someone may request something be read into the record, but Staff does not function as readers of multiple pages to read them into the record; in 27 years he has never been asked by a Chair to read them into the record due to the tendency that it could make them Staff’s words, although they are made part of the record. Attorney DeCrescenza indicated the appropriate procedure would be to bring the emails to the meeting and read the identity of the emails into the record with the subject to acknowledge on the record that the Commission received them; a Commissioner may request the text be read into the record on an exception basis, and if someone cannot be present that night, on a courtesy basis a short email could be read into the record. Mr. Glidden gave the example of several emails that were sitting in his spam box. Commissioner Rieger indicated it would be even easier to add it to the packet, and if the Town email system isn’t working, that should be dealt with. Commissioner Rieger suggested a standard that expressions of citizen concern be forwarded to Commissioners; the Commissioners agreed and requested Carrie send out an email the day of a meeting if new material is added to the packet.
Tom Roy asked noted in February their plan to finish restoring and reseeding in the next few weeks and asked if at this point they should not change anything prior to the field walk? Mr. Rabbitt clarified that the Town has a permit to create a trail system subject to the development of cross-sections by Wetlands Commission Staff for surface treatment, which are in the draft process, and those will be given to Public Works to complete that system; in addition, there is one extremely wet area they will be backing out of and linking back to the trail system; they are operating under a valid permit and as they go into the growing season on 4/15 with some areas potentially to be reseeded, they will move forward under that permit, weather permitting.
Correspondence
Regarding the role of alternates, Attorney DeCrescenza clarified that until an alternate is seated through a vote of the Commission, the alternate can participate to the same extent and manner as a member of the public and is free to ask questions the public could ask, but once the Public Hearing is closed and the Commission begins to deliberate the unseated alternate cannot participate because it could technically be seen as an illegal public hearing or illegal taking of ex parte evidence. Even though someone may be sitting through a long meeting and believes they should have an opportunity to participate, Attorney DeCrescenza said it was a bright line rule that they not participate, although every utterance may not be fatal to an outcome, procedurally the alternates should be silent. Commissioner Morrison responded that was different than direction he received as a past alternate. Attorney DeCrescenza said it may have been a past practice, but is not allowed, although he would be comfortable defending it likely had no impact on the decision. Mr. Rabbitt recalled that he has also seen that practice occur when it should not; the Applicant has the right to have their application voted on by the seated members; and if you are not seated, you are like a member of the public. Attorney DeCrescenza noted it can be the culture of a Commission. Regarding how to appoint alternates, Attorney DeCrescenza believed a motion was needed or unanimous consent of the Commission to the Chairs appointment.
Mr. Rabbitt discussed jurisdictional rulings for decks, generators, etc. which in many communities are handled by Staff under statute, but he would not issue a jurisdictional ruling if there were any question and it would be an Agenda item reported to the Commission. He added under the application process set up by the statute, if the Commission designated an agent where someone applies to Staff for a jurisdictional ruling once it goes to the Commission it cannot be delegated to Staff for approval; and once it goes to Staff, it either has to be denied, approved, or conditionally approved and it cannot be kicked with a supplemental application to the Commission. He said if it was 10 feet from the wetlands, they would probably not provide a jurisdictional approval. For administrative approvals, Staff cannot sign it until it is authorized by the Chair, but here under the statute Staff can sign the permit and the Chair has no authority to authorize approval, this would clarify the Commission’s ability to allow the designated agent to issue jurisdictional rulings. Attorney DeCrescenza said it would be a text amendment; Chairperson Winters asked for some language to clarify that. Commissioner Rieger asked if this differs from Section 12 by taking the Chair out of the loop? Mr. Rabbitt confirmed it takes the Chair out of the loop and DEEP’s regulations also allow it; it is an understanding with the Commission regarding what they are comfortable with Staff signing off on and they would not do anything to get into trouble; and there could be an informal discussion with the Chair. Mr. Rabbitt indicated the need to understand the Commission’s comfort level with Staff. He said it gives jurisdictional ruling approval authority to Staff for anything associated with URA lands or buffer areas, but not inside wetlands. Mr. Rabbitt indicated he, Mr. Glidden, and Robin have all been certified by DEEP, which allows them to be designated agents of Commissions which could allow them to issue jurisdictional rulings. Chairperson Winters asked that language be provided at the next meeting for discussion.
Commissioner Rieger asked about the Commission’s request to the First Selectman to support a change in the Town Code to make it easier for the Commission to be supported by an expert; the response was that it is complicated. Attorney DeCrescenza confirmed that it is more complicated and indicated a statute allowing Commissions to charge back is in Title 8 not 22A and he needs to determine if it is applicable to 22 A; also, the cost can only cover the actual fee plus an administrative charge and cannot be turned into a tax or exaction - the difficulty is determining the appropriate fee ahead of time understanding only the BOS can establish fees. He is reviewing it and said it has to be grounded in statutory authority and written in a way so it is actually enforceable; it would have to be on the fee schedule and part of the ordinance; for the Planning and Zoning section of the fee schedule, an agreed-upon cost would be arrived at and that cost is authorized by the BOS. Commissioner Rieger noted the way the Code is currently written, the Commission would find candidate experts, get prices, and submit a recommendation to the BOS for who the candidate should be and the cost, but CACIWC and other feedback is to increase the estimate for the expert by about a half and that estimate is given to the BOS. Attorney DeCrescenza responded as long as that increase can be justified, and there is an administrative upcharge for Staff time to coordinate with the expert; but the bigger issue is that it cannot become a barrier to someone filing an application, e.g. requiring a $50,000 deposit from an applicant to hire an expert. Attorney DeCrescenza has not yet completed his review.
APPROVAL OF MINUTES of the March 15, 2016 regular meeting
On Line 14, the name “David” is corrected to “Darren”.
Chairperson Winters filed for the record the March 15, 2016 regular meeting minutes, as amended.
ADJOURNMENT
Commissioner O’Connor made a motion to adjourn the meeting at 9:30 p.m.
Commissioner MacCormac seconded the motion, and it was passed unanimously.