2009-01-06
INLAND WETLANDS AND WATER COURSES COMMISSION
JANUARY 6, 2009 MEETING MINUTES
CALL TO ORDER:
The meeting of the Inland Wetlands and Water Courses Commission was called to order by
Chairman Raymond Jarema at 7:00 p.m. on Tuesday, January 6, 2009 in Room 8 of the Berlin
Town Hall, Berlin, CT.
Present: Chairman Raymond Jarema, Commissioners Patrick Serra, Marc D'Amore, Michael
Balinskas, Richard Poudrier, and Jim Horbal, Agent to the Commission.
Absent: Neil Young.
APPROVAL OF MINUTES:
M. Balinskas moved to table the minutes of the December 2, 2008 meeting due to lack of
quorum, seconded by P. Serra. The motion passed unanimously.
AUDIENCE OF CITIZENS:
none
REGULAR MEETING:
Application 09-01WF
– Proposal by the Town of Berlin to replace the Beckley Road Bridge
which lies within both a wetland and flood hazard zone.
REPRESENTING THE APPLICATION
Bart Bovee, of MBA Engineering, represented the Town of Berlin for the reconstruction of the
Beckley Road Bridge over Spruce Brook just south of the Berlin Fair Grounds. A temporary
decking was placed over the structure last fall, and the Town is looking to replace it with a twin
box culvert this summer. Mr. Bovee and Town Staff have met with the Army Corp of Engineers
to discuss the Federal Permitting requirements, and met with the State of Connecticut DEP on
January 6, 2009 to gather their requirements for the project. Because the bridge is located both
with a designated flood hazard zone, and because the water shed reaches over a square mile in
the uplands, this requires a Category Two application. Mr. Bovee is proposing a twin box
culvert. The first box culvert would essentially be set along the opening of the existing stream,
and a second box culvert would be placed just to the north with concrete wing walls on both
sides, maintaining a 26’ roadway through the area plus extending it out for a sidewalk connection
with the Route 9 sidewalk if the Town sees fit. The wetlands were delineated and the potential
activity in the wetlands (worse case), is approximately four hundred (400) square feet which can
be mitigated by the work within the extension of the wing wall areas.
M. Balinskas questioned what disturbance, activity, loss of wetlands Mr. Bovee was talking
about. Mr. Bovee explained that because we’re building wing walls, there is going to be
additional activity out into the wetlands, but it’s not all going to be permanent. Mr. Bovee was
hoping to pass a full 100 year storm under the culvert, but due to the hydraulics of the area and
some of the impact areas, we may only be able to pass a 50 year storm. That is what is on the
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application at this time. We’ll have that by the next meeting. M. Balinskas asked what the
implications of a 100 year storm design were. Mr. Bovee responded that the water would
typically top the road in some areas. The hydrologists are concerned about the upland regions
and the impacts of a 100 year storm and what would happen with the back water and how much
would that drop the storage area behind that. We know the majority of that is Webster Park that
is owned by the Town of Berlin but we have to be careful not to dry the wetlands up too much.
Down stream is a little bit different. We don’t have much of a hydraulic jump as we cross the
road, but as we get back into the Mothersele property about a thousand (1,000) feet, there is a
pretty steep gradient where the flood zone takes off. So by over-sizing the culvert we’ll work on
the calculations to see what happens with the backwater condition and the additional flow
conditions we’ll have back in there. R. Jarema questioned that you’re actually constraining flow.
Mr. Bovee responded that yes, we’re probably constraining flow somewhat in there, but we
definitely need to have that extra box in there because part of the Army Corp Cat II permit is that
you have to be able to pass a 50 year storm. M. D’Amore asked what we’re passing now. Mr.
Bovee responded that with the last storm, it was probably a 25 to 50 year flood that passed
through there. M. Balinskas asked what happens when you prepare for a 100 year storm, and
Mr. Bovee responded that the culvert gets bigger, the flow stays lower, you may have to raise the
road up higher. The impact of raising the road wouldn’t have too much impact on the wetlands,
but the Mothersele driveway is close, so you can’t change the road height too much more. We’re
anticipating bringing it up six inches to a foot higher for right now. The limits of both state and
federal wetlands have been field located, along with the limits of the 100 year floodplain. Mr.
Bovee commented that once the meeting with the State Fish and Wildlife is held, they will see
how deep to make the channels and add the parameters required by the State. Our application is
currently asking for a minimum criteria of a 50 year flow, we may come back to the public
hearing and say we can accommodate a 100 year flow or something comparable, but for now it’s
for 50 years. DEP is concerned about the backwater impact in the storage area that would lessen
the surcharge that would impact maintaining the wetlands in the uplands. We have to order the
software from FEMA to get their required calculations before we can finish our calculations.
Mr. Jarema entertained a motion to take the application to public hearing because of the impact
to the area, and public property concerns in the area.
M. D’Amore moved to take Application 09-01WF to a public hearing at the February 3, 2009
meeting, seconded by M. Balinskas. The motion passed unanimously.
Application 09-02W
– Proposal by Peter Niro to place fill in a wetland area on Lot #19, Block
144, 809 Spruce Brook Road.
REPRESENTING THE APPLICATION
Mr. Niro sent an e-mail request to Public Works Director, Art Simonian, requesting a
continuance of the application, as he was unable to attend the meeting.
Mr. Horbal explained that the applicant has applied for approval to allow for the filling of an
approximate 20,000 square foot area of wetlands, and piping of approximately 190 linear feet of
an existing intermittent watercourse. The current owner is presently using the property for
agricultural purposes. The property is located along the northeast corner of the intersection of
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Spruce Brook Road and Savage Hill Road. Due to the properties location, both staff and the
applicant are required by statute to notify the City of Middletown in writing of the pending
application. Wetland delineations are shown based upon field located data taken from a
previously approved subdivision of the property.
M. Balinskas inquired as to the availability of previous land records submitted in other
applications and requesting that the Commissioners and the applicant all have access to the
information by the public hearing date. Mr. Horbal commented that the reference line was taken
from that previous application. He (Mr. Bongiovanni) is referencing the Shepard sub-division
(seven lots approved by the Shepard family) and as part of that project, the wetlands were field
delineated for that application (95-13W). The Commission approved a residential sub-division
with a driveway crossing for a rear lot but the wetlands line that is in question (on the
application before you), appears to be the same line that was part of that sub-division. Mr.
Horbal did not know if Mr. Niro has retained a soil scientist. R. Poudrier mentioned that the
commission has not made a decision on having Mr. Niro remediate the property. If he were to
come before us tonight as a farmer, and complete an application, he could have it approved or
not approved and of course that falls within our realm. We make these decisions all the time. If
he had followed the proper procedure as he was advised, we wouldn't even have this
conversation today. What are we asking him to do? Are we asking him to remediate that
property? R. Jarema responded that he wanted everyone to review last month's minutes to
refresh themselves on the options. The Commission could ask Mr. Niro (pursuant to the
Connecticut General Statutes Section 22a-22) to "cease and correct" which means to stop and
bring the land back to its original state. R. Poudrier asked if the Commission wanted to do that
now? M. Balinskas commented that he felt it would be inconsistent with past rulings, where
other people have come before the Commission under a cease and desist doing other things, and
the Commission has been able to work out conditions of approval. R. Jarema felt that now that
there is an application before the Commission, it is less adversarial and we can continue to move
forward. R. Poudrier commented that Mr. Niro initially intended to steam roll through
everything, but now realizes that anything he proposes at this time will be scrutinized by the
Commission and may be approved or not approved. Do we want to penalize him or have him do
remediation someplace else? M. Balinskas replied that was not his intention, but to follow the
law, or regulations set forth by the Commission. R. Poudrier commented that the Commission
makes decisions and exceptions all the time. R. Jarema commented that the Commission is past
the understanding that Mr. Niro can perform farming activities, but the unresolved piece is still
about destroying the wetlands and doing everything else he wants to do. The only thing that is
different about this application, is that he has already completed the item that is proposed.
R. Poudrier felt that if we could go back, we all would do things differently. Mr. Horbal
responded that he asked Mr. Niro to do this a couple of years ago. R. Jarema stated that now that
we have a less adversarial avenue with an application, we can look at the activity with other
alternatives. Mr. Jarema is concerned that the proposed pole buildings are exactly in the area
that was the wetlands area, so we're still looking for our original answers to how much fill has
been placed, and its location. It seems to be substantial and there is a good way to identify that.
I suspect the applicant wasn't ready with that information. M. D'Amore felt that at least through
the application process, there may be a way to correct this property through an agreement. R.
Jarema commented that the whole thing is just backwards because the activity has already been
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completed. M. Balinskas felt there may be some mitigation that can be integrated now. R.
Jarema mentioned that the barns are not built yet. If they had already been built, it would be
tough. R. Poudrier responded that if Mr. Niro had come before us with an application, knowing
he has the right as a farmer, and told us what he was going to do, we wouldn't have this situation.
Mr. Horbal commented that he has the right to farm the property, but filling and destroying a
wetlands is not allowed without a permit. Mr. Jarema summarized that the Commission now
understands that farming is exempt, but that doesn't mean that we have to accept the other
activities and there is room for mitigation here. Mr. Horbal suggested the usual "prudent and
feasible alternatives". P. Serra questioned that with an application, Mr. Niro can propose to put
the pole buildings any place on his property, but the Commission would suggest that he not use
the wetlands area. Mr. Horbal replied that indeed he is allowed to use the wetlands for grazing,
some clear-cutting, he can drive a wagon over the area and nothing can be said, but when it
comes to filling it, that is where the permitting process comes in regardless of the use of the
property. R. Jarema stated that Mr. Niro's engineer should be looking at places to mitigate
whether on this property or someplace else. This goes back to what M. Balinskas has asked all
along, how much fill was brought in and what area was it put in. M. Balinskas requested for the
record that the information about this property that has been presented in the past on other
applications regarding wetlands delineations etc. be made available to everyone prior to the
public hearing. Mr. Horbal mentioned that the applicant is obligated to inform the City of
Middletown Wetlands Commission. R. Jarema requested, out of courtesy, that staff inform Mr.
Niro of his obligation to inform the City of Middletown of the hearing.
Chairman Jarema entertained a motion to take the application to Public Hearing due to the
significant activity on the property.
M. Balinskas moved to take Application 09-02W to a public hearing at the February 3, 2009
meeting, seconded by M. D’Amore. The motion passed unanimously.
OTHER BUSINESS TO COME PROPERLY BEFORE THE COMMISSION:
a) 809 Spruce Brook Rd. Violation - Peter and Anthony Niro
M. Balinskas questioned that there is an open notice of violation, and it doesn't "go away" just
because there is an application. We don't know what is going to happen with this application, so
shouldn't the Commission proceed as we typically do with other violations with a Certificate of
Notice. R. Poudrier does not want to jeopardize moving forward with the application. M.
Balinskas wanted to know how long the Commission would wait for a resolution. This began at
least six months ago. I think we have been more than accommodating to this person and looking
at this purely from a consistency point of view, in similar situations, the Commission would've
acted on this by now. P. Serra remarked that Mr. Balinskas was not at the meeting last month,
but an olive branch was passed two months ago, but Mr. Niro was not present last month either,
so I can see your concern. Mr. Balinskas asked again, how long do we wait. Why do we treat
this gentleman any differently from other violations? Mr. Poudrier wanted to give it another
month. Mr. Balinskas said he will continue to bring it up, and feels that Mr. Niro is being treated
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differently, but not to soil the nest, he will wait another month. M. D'Amore confirmed that the
Commission wouldn't open themselves up by not issuing a Certificate of Notice at this point.
Mr. Horbal commented that in all fairness to Mr. Balinskas, in his twenty years on staff, he has
tried to be fair and consistent, and after a violation has gone on this long, it has been placed on
the land records. Mr. Jarema replied that with no further action, he will add this to the agenda
again.
b) 1059 High Road Violation - Edward, Gary, and Richard Riedel
Jim Horbal explained to the Commissioners that the silt fencing has been installed; the wetlands
line has been re-created, flagged in the field. Mr. Horbal spoke to Mr. Riedel about how to best
stabilize the embankment with vegetation, maybe mulch and winter rye, but Mr. Horbal has yet
to see this happen. Mr. Horbal will contact Mr. Riedel.
M. D’Amore moved to table the violation until next month to allow Mr. Riedel time to continue
to stabilize the slope for the winter season, seconded by P. Serra. The motion passed
unanimously.
Regulation Revisions Discussion
Chairman Jarema led a discussion with the commissioners about spending time at a meeting to
get the regulations ready to present to Council for a Public Hearing. The secretary has drafted
the revisions from the State model regulations and is ready for the Commissioners to give further
direction.
ADJOURNMENT:
P. Serra moved to adjourn the meeting at 8:00 PM, seconded by M. Balinskas.
The motion passed unanimously.
Lecia Paonessa
Recording Secretary
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