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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 Inland Wetlands and Water Courses Commission Page 1 of 5 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 Inland Wetlands and Water Courses Commission Page 2 of 5 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 Inland Wetlands and Water Courses Commission Page 3 of 5 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 Inland Wetlands and Water Courses Commission Page 4 of 5 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 Inland Wetlands and Water Courses Commission Page 5 of 5