Conservation Commission / IWWA Minutes 06/07/2016
CONSERVATION COMMISSION/INLAND WETLANDS
AND WATERCOURSES AGENCY MINUTES
JUNE 7, 2016
REGULAR MEETING MINUTES
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. Also present were Michael Glidden, Assistant Town Planner; Janis Prifti, Commission Clerk; and other interested parties.
II. ROLL CALL
Commission Members and alternates in attendance were: Margery Winters, Darren Cunningham, Jason Levy, and Donald Rieger.
1. Appointment of Alternates
A quorum was present and no alternates were seated.
III. APPLICATIONS
1. Old Business
a. Discussion and Possible Action:
i. Application #16-14 of Duane Doot, Applicant; Matt and Kara Gallagher, Owners; for the construction of a deck and porch on piers in the upland review area to a wetland on the property located at 1 Alder Road (Assessor’s Map F06, Block I07, Lot 001). Zone R-15. (received 05/17/2016; decision must be rendered by 07/21/2016)
Application #16-14 was read into the record.
Mr. Doot proposed adding a deck and porch on the back side of the Gallagher’s house toward the wetland area, which was described as all sand on the upper part and boggy and swampy on the lower part; the piers would make it very uninvasive. The Commissioners asked if the Applicants were familiar with and in agreement with Staff’s recommendations/conditions. Mr. Doot confirmed there would be no clearing; no change in grade; no work in the wetland; and indicated a plan that only about ½ yard of material would be removed and placed in backyard potholes. Mr. Glidden confirmed the ½ yard of material would not be an issue and the Special Condition can be modified, but requested the Applicant contact his office 48 hours prior to moving the material to allow for appropriate Staff supervision.
Commissioner Cunningham made a motion that this is a regulated activity because it involves work within the Upland Review Area to a wetlands.
Commissioner Levy seconded the motion, and it was passed unanimously.
Commissioner Cunningham made a motion that this is not a significant activity because it involves very little disturbance to the area, very little material will be pulled out, no work will be done within the wetland, and there will be no grading performed.
Commissioner Levy seconded the motion, and it was passed unanimously.
Commissioner Cunningham made a motion to grant the permit, subject to the Conditions contained herein, as well as those just discussed between the Applicant and Staff.
Commissioner Levy seconded the motion, and it was passed unanimously.
ii. Application #16-15 of Frank J. Sidoti, Jr., Owner; for the removal of the existing garage and construction of a new garage with an accessory dwelling unit above in the upland review area to a wetland on the property located at 9 Nod Brook Drive (Assessor’s Map C19, Block 510, Lot 044). Zone R-40. (received 05/17/2016; decision must be rendered by 07/21/2016)
Application #16-15 was read into the record.
The Applicant’s Attorney reviewed that the proposal is to replace an existing garage with a new garage in a smaller footprint. Brian Denno, Surveyor, presented the plan to remove the existing garage and build a new smaller footprint 2-story 48’x 52’ garage; there would be no clearing; a silt fence would protect the site downhill of the new construction along Nod Brook with about ½ of the garage within the 100-foot review area; the garage will have an in-law apartment above; it would be served by public sewer past Nod Brook and served by water and electric from the house and well house; it is an 8-acre site near Climax Road and Nod Brook Road. Regarding the distance from the URA, the Attorney indicated it was 84 feet. Mr. Denno indicated the only grading would be after the new garage is poured matching the finished floor; there would be utility trench to connect to the sewer; the water comes into the existing garage and if it is not sized correctly may come from the well house with a bigger trench; and there would be no floor drain in the garage. The Attorney confirmed that the Applicant is familiar with the Conditions in Staff’s report and agreed they would return to the Commission with any substantial changes.
Commissioner Rieger made a motion that this is a regulated activity as it involves construction within the Upland Review Area.
Commissioner Cunningham seconded the motion, and it was passed unanimously.
Commissioner Rieger made a motion that this is not a significant activity as it does not portend any work within the wetland or any impact which would be a concern upon the wetland.
Commissioner Cunningham seconded the motion, and it was passed unanimously.
Commissioner Rieger made a motion the permit be granted with the Special and Standard Conditions summarized in Staff’s report and acknowledged by the Applicant.
Commissioner Cunningham seconded the motion, and it was passed unanimously.
iii. Application #16-16 of Rebecca S. Smith, Owner; for the construction of an addition on a slab in the flood zone on the property located at 31 Fernwood Drive (Assessor’s Map B18, Block 506, Lot 054). Zone R-25. (received 05/17/2016; decision must be rendered by 07/21/2016)
Application #16-16 was read into the record. Commissioner Cunningham stated for the record that his parents live at 34 Fernwood Drive, which is not adjacent, and he would sit in on the Application.
Brian Denno, Surveyor, represented the Applicant’s proposal for a garage addition at 39 Fernwood Drive, which is on the south and west side of Fernwood Drive with Nod Brook running through north of the existing house and driveway, and also has the 100-year flood line and flood way identified by elevation in the field and on the plan. He indicated following discussions with Staff, the proposed addition going from a 1 to 2-car garage would be in front of the existing garage and up; work in the floodway would remove some pavement and a paved leadoff, with regrading and loam/seeding of the disturbed area; any construction material would be removed from the site; there would be no clearing; 25-30 sq. ft. of pavement would be added to enter the 2-bay garage at grade maintaining the current elevation; and the silt fence would be moved closer to the house with all pouring done from the existing driveway. Regarding activity in the flood way and removal of some pavement and the paved leadoff, Staff confirmed that would be a benefit, rather than their prior plan involving structure in the flood way and significant grading; from a flood management standpoint this revised plan makes more sense.
Commissioner Cunningham made a motion that this is a regulated activity because it involves work to be performed within the Upland Review Area and 30 feet from a water course.
Commissioner Levy seconded the motion, and it was passed unanimously.
Commissioner Cunningham made a motion that it is not a significant activity because it involves limited work within the flood plain area, improvement to the flood plain, no change in grade is proposed, silt fencing will be there to protect material from reaching the wetland, and most of the work will be able to be performed from the existing driveway.
Commissioner Levy seconded the motion, and it was passed unanimously.
Commissioner Cunningham made a motion to grant the permit, subject to the Special Conditions by Staff, and with the understanding by the Applicant that if any changes are made, there will be consultation with Staff.
Commissioner Levy seconded the motion, and it was passed unanimously.
2. New Business
a. Receipt of New Applications:
None.
IV. GENERAL COMMISSION BUSINESS
1. Registration: 2016 Municipal Inland Wetlands Agency Comprehensive Training Program
Mr. Glidden reviewed Legal and Administrative Update sessions are scheduled for: June 21st Deep Woods Session at the Center in Burlington; June 28 in Derby, and July 7th at Fort Trumbull in New London. Mr. Glidden offered to register with DEEP any Commissioners interested in attending if they let him know, or Commissioners can register directly on the website. Also, Commissioners can sign up for the comprehensive 2016 program; Commissioner Levy indicated his interest.
2. Correspondence from Timothy Martin, received 04/11/2016 regarding the subject property located at the end of Lark Road
Mr. Glidden indicated they are waiting for a response from Counsel.
3. Correspondence from Don Rieger to Lisa Heavner, dated 06/07/2016, regarding Pesticides
Commissioner Rieger reviewed that the Commission unanimously approved the letter written last fall to the First Selectman confirming that the activities in Simsbury Meadows were legal, but not the right thing to do as the 2 pesticides being used are labeled by the EPA as killing pollinators, aquatic invertebrates, and fish. The Commission’s point of view was that if there is a public health risk with a known vector and a pesticide known to be effective against that known vector, then you can balance risk/reward to decide whether to spray. In this case, the sole purpose is for concert goers to avoid buying insect repellant, and the Commission did not think the environmental risk being taken, given the EPA’s labeling, can be justified for the convenience of people.
Commissioner Rieger believed strongly that the First Selectman’s letter was not responsive to the Commission’s letter and the Commission should restate its point of view. Chairperson Winters indicated interest in receiving input from the full Commission, as the letter would come from the Commission as a whole. She noted the pesticides being used are extremely harmful to aquatic life and requested Staff input. Mr. Glidden indicated the PAC does the spraying and consults with their vendor to hire a licensed applicator; the Town owns the property and the PAC is the tenant. Regarding where spraying is done, Commissioner Rieger noted the yellow sign was at the entry to the two illegal parking areas.
Regarding the playground closure tomorrow, Mr. Glidden believed the contractor would be onsite tomorrow regarding the vegetative swale. Mr. Rieger noted the playground is routinely closed at this time of the year and likely due to spraying. Chairperson Winters noted there is an integrated pest management approach recommended by DEEP, and would like to know exactly what is being done in order to respond to that; and Commissioner Rieger noted their focus is in the southern part of the State. Chairperson Winters expressed a need for more exact information on what chemicals are being used and to state that information more clearly in the letter. Commissioner Rieger noted the Commission’s previous letter was blown off and to mind your own business and this proposed letter says they need to deal with the Commission on this; and he believed taking on the responsibility for suggesting what they should do instead is not the Commission’s role. Chairperson Winters noted they have now provided information on the pesticides being used; the Commission knows they are harmful to the aquatics, and the Commission wants to see a better plan coming back and why is the PAC deciding what applicator is being used. Mr. Glidden believed it may be spelled out in the lease with the Town. First, however, she would like to have the full Commission’s discussion and input and to tighten up the argument. Commissioner Cunningham was fine with the draft letter proposed. Commissioner Rieger was concerned that it took from November to late May to get the first non-response and suggesting there are alternatives that could be explored. Chairperson Winters suggested incorporating comments that DEEP has a mosquito management program not being followed and she will send Commissioner Rieger the link to strengthen the letter while still protecting people’s health. Mr. Glidden indicated he would provide input and assistance to the Commission, as requested.
Commissioner Cunningham made a motion to table the letter to the next meeting.
Commissioner Levy seconded the motion, and it was passed unanimously.
4. Correspondence from Don Rieger, regarding DRAFT Simsbury Meadows Community Center
Commissioner Rieger reviewed that at the BOS meeting they indicated a multi board and commission meeting would be set up; the First Selectman referred to the multi board meeting model for Ethel Walker. The meeting would call upon commissions for their views on whether Simsbury Meadows is the appropriate Community Center site with input received in advance of that meeting to allow time to consider that input. He was not aware that such a meeting has been set, although a meeting in June was discussed. Chairperson Winters indicated the need for input from Staff and the Town Attorney, as well as from Commissioner Beinstein, who represents the Commission at those meetings.
Regarding the Center’s footprint, Mr. Glidden indicated there is only a preliminary concept plan, and Commissioner Rieger believed it was not known. Chairperson Winters proposed putting forward questions for the BOS to consider and potential alternative plans. Commissioner Rieger believed that the BOS decided some months ago that Simsbury Meadows would be the site; however, there is now some question about that decision and they are having these sessions to hear what people think about the site. Commissioner Rieger noted there are different applicable standards. Mr. Glidden indicated Attorney DeCrescenza’s input is needed and the Commission with very little specifics should look at this in a very general way and not prejudge the application from a regulatory perspective. Commissioner Rieger gave the example of adopting the proposed statement, then an application comes before the Commission which for regulatory reasons is turned down; the Applicant could say there was a previous position, and the Commission could indicate they should make their case at Superior Court – the suggested rationale regarding the 2-hat argument deprives the Commission of a voice altogether with the Commission’s conservation role not being carried out. Chairperson Winters did not agree and would like to have more consideration of alternative sites, including what made them untenable, what are the costs, etc. Commissioner Rieger suggested reading on the website the Fordham Professor’s consultant’s report, including that: 1) the Andy’s site provided very ample parking, but was in a strip mall format, and 2) some persons might not find it attractive. Chairperson Winters reiterated that prudent and feasible alternatives should be considered and unattractiveness may not be a consideration for the Conservation Commission; the Commission should provide comments to the BOS elucidating the direction we believe they should go in order to get more information back. The Commissioners discussed the potential for a response from the BOS and the best way to proceed and not be dismissed in this process. Chairperson Winters requested input from the full Commission; it will go out to the Commission in the next meeting packet for full discussion; and Mr. Glidden indicated the Town Attorney should also be present at the next meeting for further discussion. Commissioner Cunningham commented that the proposed letter indicates the special nature of Simsbury Meadows and should reflect the full Commission’s comments and concerns with input from the Town Attorney.
Commissioner Cunningham made a motion to table the letter to the 06/21/2016 meeting.
Commissioner Levy seconded the motion, and it was passed unanimously.
5. Correspondence from Don Rieger to Lisa Heavner, dated 06/07/2016, regarding Town Code Section 85-6.1
Commissioner Rieger reviewed that the Commission wrote to the First Selectman asking her to support a change to the Town Code because the Inland Wetlands law does not provide much latitude for the Commission’s views if the Applicant has an expert providing an opinion that there is no consequence to a wetland - which the Commission must take account of and is stuck with since there would be no countervailing expert opinion as the Commission cannot hire an expert. While the Applicant can agree to conditions, at some point an important application will come in when that is not the Case. Commissioner Rieger noted a statute in the Town Code allows the Zoning, Planning or Conservation Commissions to hire an expert at the Applicant’s expense, with BOS concurrence. He noted, however, for the BOS to consider allowing the Commission to hire an expert requires that an Application involve either: 1) a parking lot for 200 cars; or 2) 100,000 sq. ft. of gross building area. Commissioner Rieger indicated the Commission could have a very important wetlands case with neither of those two triggers, which prevents the Commission even asking the BOS for permission to hire an expert. He added that if the Commission believes in good faith that the matter is very important or complicated, it should be able to ask BOS permission. However, he explained Attorney DeCrescenza’s opinion misunderstands the Commission’s request and indicates that the Commission is asking for something other than in 86.5.1, even though specific language was provided, and therefore the First Selectman did not support the proposed change.
Chairperson Winters believed a guideline for the applicant is required regarding whether they would be charged a fee on a case-by-case basis. Commissioner Rieger noted that Mr. Rabbitt indicated at the last meeting that Planning and Zoning to not have fee schedules but negotiate a fee. Chairperson Winters queried what the threshold would be for the Commission. Mr. Glidden indicated he would check with other town conservation commissions to get information regarding cases where the applicant was charged; the smallest application could be the most complex. Commissioner Rieger noted the case of a town-hired expert where the applicant expressed it was the best money he ever spent to properly process an application. Mr. Glidden noted an instance for another town where the Town reviewed bids for hiring an expert for a commission and decided not to hire one, which left the commission with a very complex application to deal with.
Mr. Glidden will obtain information from his peers and provide feedback to the Commission at the next meeting. Chairperson Winters summarized that information gathered could also be reviewed with the Town Attorney at the next meeting followed by the letter to the First Selectman. Commissioner Cunningham liked the BOS having discretion in making financial decisions and felt this is a good time to consider these triggers; Commissioner Rieger believed the financial considerations are why the BOS makes the threshold high. Commissioner Cunningham noted a parallel type of function where this Commission has discretion to decide whether to hold a Public Hearing when an application is believed to be very important. Chairperson Winters would like the Commission to come to an agreement with the BOS and for all Commissioners to reach consensus as a community representative with all issues addressed or potentially acknowledge dissent in the letter.
Commissioner Cunningham made a motion to table the letter to the 06/21/2016 meeting.
Commissioner Levy seconded the motion, and it was passed unanimously.
6. Correspondence from Don Rieger to Zoning Commission, dated 06/07/2016, regarding Water Bottling
Commissioner Rieger reviewed that the Commission had not reached consensus regarding the Niagara Bottling matter. Chairperson Winters added that there was not complete agreement nor the process for a successful effort. Commissioner Rieger agreed that a position was not taken on Niagara Bottling, but based on evidence from other similar businesses there is industrial influence to exploit ground/spring water with a wide array of concerns around such businesses. He noted that relevant to the Commission’s concerns about drought policy in a town 100% reliant on ground water, such a business could exploit great amounts of ground water, bottling and/or trucking it in tankers for sale elsewhere. He noted a State diversion permit is required for 50,000 gallons/day, which could be granted. He gave the example of various LLCs created with a lot of unregulated exploitation of ground water and it is rational for the Town to preempt it. His footnotes reflect feedback from an experienced party and a real live case of companies looking for Connecticut water with officials looking to give the water away. His letter points out the risk the Commission sees and suggests they think about it.
Chairperson Winters asked how productive ground water is in Simsbury? Mr. Glidden responded there are some very productive aquifers and selling water is a real possibility; the concern would be a private company drilling a well to produce water for export only. Mr. Glidden noted that the Zoning Commission is comprehensively revising their regulations, which people will be part of; currently, they are working on residential zones and Staff is now working with the consultant on commercial. Mr. Glidden added that the RFQ just went out Friday regarding updating the POCD next year, and water conservation should be part of the Commission’s expertise reflected in the POCD. Commissioner Rieger noted there are 2 layers of concern: 1) a prohibited use for the water bottling plant; and 2) suggesting Zoning consider a special exception regime for other large water users. Chairperson Winters noted agriculture and public irrigation are huge water users and wanted all members of the Commission to review and comment.
Commissioner Cunningham made a motion to table the letter to the 06/21/2016 meeting.
Commissioner Levy seconded the motion, and it was passed unanimously.
V. APPROVAL OF MINUTES of the May 17, 2016 Regular Meeting
Chairperson Winters filed for the record the May 17, 2016 Regular Meeting Minutes, as written.
VI. ADJOURNMENT
Commissioner Rieger made a motion to adjourn the meeting at 8:50 p.m.
Commissioner Levy seconded the motion, and it was passed unanimously.