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2009-06-02 INLAND WETLANDS AND WATER COURSES COMMISSION JUNE 2, 2009 MEETING MINUTES The monthly meeting of the Inland Wetlands and Watercourses Commission was called to order by Chairman Michael Balinskas at 7:05 p.m. on Tuesday, June 2, 2009 in Room 8 of the Berlin Town Hall, Berlin, CT. ATTENDANCE: Chairman Michael Balinskas, Commissioners Neil Young, Mike Cassetta, Fred Pindar, Richard Poudrier, Steven Alessi- Alternate (arrived at 8:00) and Jim Horbal, Agent to the Commission. Absent: Mark Rochette (Alternate), Patrick Serra MINUTES: The minutes of the May 12, 2009 special meeting had been previously mailed with the monthly packets. There was a correction to be made, but the minutes were approved by unanimous consent. AUDIENCE OF CITIZENS: None PUBLIC HEARING Chairman Balinskas opened the Public Hearing by continuing Applications 09-01WF and 09-02W: 1) 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. A phone call was received from MBA Engineering explaining that the FEMA Flood Insurance Study base data conversion is still incomplete. Chairman Balinskas confirmed with Mr. Horbal that the application deadline has passed and the Commission must act on the application tonight. Mr. Horbal stated that the Town was aware of the deadline and will re-apply as soon as possible. A motion was made by Commissioner Poudrier to close the public hearing for Application 09-01WF, seconded by Commissioner Pindar. The motion was passed unanimously. A motion was made by Commissioner Poudrier to deny Application 09-01WF without prejudice, seconded by Commissioner Cassetta. The motion was passed unanimously. 2) 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: Allan Bongiovanni of BGI Group was present to speak to the Commission, and gave his apologies for not being able to attend at the last minute last month. Prints were sent to the Public Works office the day after the last meeting. Mr. Bongiovanni explained the print and demonstrated that two of the three proposed barns have been relocated from the wetlands area on the property. They Page 1 of 6 had another recent discussion with Wendy Goodfriend (Natural Resource Specialist, of the Connecticut River Coastal Conservation District) and will get her mitigation recommendations in writing. She also told them that the proposed grazing fields for livestock would have to stay out of the watercourse area, and buffer plantings were necessary. She felt that off-site mitigations probably wouldn’t be appropriate and that enough measures could be incorporated at the property site. Commissioner Young was still concerned about the slope and the plans for the livestock manure. Mr. Niro answered that since he moved the barns to a different location, he didn’t think the plan was still necessary but would supply something if requested. Commissioner Balinskas commented that Ms. Goodfriend’s plan was still needed in writing and wanted to understand her mitigation recommendations. Mr. Bongiovanni said she had a recommendation that would keep the livestock waste away from the watercourse with buffer plantings but he would need to see the recommendations in writing for further clarification. Commissioner Balinskas confirmed with Mr. Horbal that this application is in the same predicament as the prior application and the Commission needs to act on this application tonight. Mr. Balinskas commented that the applicant has the option of withdrawing due to statutory time requirements. He doesn’t want to slow down any progress that is being made. There is still proposed activity in the watercourse area and in the upland review area that has potential for impact. Commissioner Balinskas asked if there were further comments from the commissioners or staff and then the public. David Evans of 1233 Worthington Ridge requested to address the commission. He said the question was really for the Commission regarding the fill that has already taken place on the property. He remembered discussion from prior meetings, and possible visits to the site by commissioners, and wondered if the fill is part of this mitigation plan or if that is still an outstanding violation under consideration on this particular property. Commissioner Balinskas explained that this particular application is in place to permit that fill to stay in place and propose mitigation because of the fill that has impacted the property. The violation is on the agenda for later discussion. Mr. Evans then asked Mr. Bongiovanni about the locations of the barns. Mr. Bongiovanni explained that there is one barn left in the wetlands area, but two structures have been moved up to different locations and switch the location of livestock all up for mitigation. A motion was made by Commissioner Poudrier to close the public hearing on Application 09-02W, seconded by Commissioner Young. The motion was passed unanimously. Mr. Bongiovanni explained that he understood the time restraints and would send a letter stating that the applicant will withdraw the application and re-apply as soon as all the requirements from the commission have been met and are ready to be presented to the Commission in its entirety. A motion was made by Commissioner Pindar to accept the withdrawal of Application 09-02W, seconded by Commissioner Poudrier. The motion was passed unanimously. Page 2 of 6 REGULAR MEETING 3)Application 09-04W - Proposal by Algonquin Gas Transmission, LLC to construct a cathodic protection bed within a wetland area on Lots 2A & 2, Block 119 and Lots 7G & 9, Block 153, Berlin Turnpike. Chairman Balinskas commented that the applicant was requested to give additional information after last months meeting, and they indeed submitted the information (in writing) to the Commissioners (mailed in the packet) regarding the construction sequence and contractor contact information. REPRESENTING THE APPLICATION: Karl Smith, Senior Wetland Scientist for TRC and Nikki LaBella, Project Manager for this case were present to speak for the applicant. Mr. Smith highlighted the information and hoped that the Commissioners felt there was “insignificant activity” to the wetlands when evaluated under the Standards and Criteria of the Wetlands Regulations for the Town of Berlin. Commissioner Cassetta moved to approve Application 09-04W with standard conditions, seconded by Commissioner Pindar. The motion was passed unanimously. 4)OTHER BUSINESS TO COME PROPERLY BEFORE THE COMMISSION: a) Notice of Violation - Peter and Anthony Niro - 809 Spruce Brook Rd. Commissioner Poudrier asked if the violation would “go away” now that the application has been withdrawn. Chairman Balinskas explained that the violation and the application are two separate items that are not necessarily related. He would like the commission to be consistent with violations and their time frames in the future. The certificate of notice to the Town Clerk that the property is under violation has been prepared as decided last month. The Chairman listened to discussion. Commissioner Young commented that in order to be consistent, it is time to move forward with the notice. Commissioner Poudrier asked what good it would do to place the property on notice when there has been more movement recently to try to remedy the situation. Commissioner Young commented that when the violation is clear, it can just as easily be taken off the record. Commissioner Poudrier asked what affect it would have on the applicant. Commissioner Young said nothing, unless there was a pending sale. Chairman Balinskas said there is a statutory requirement to act on this violation and placing the property on records is the only tool the commission has to push toward a resolution. Commissioner Poudrier said we’ve been working on this for about eight months and felt that we were finally coming out of the woods with a resolution and making progress. Part of me says we should and part of me says we shouldn’t. Commissioner Cassetta said that the owner has come forward with some plans to move toward resolution so by putting the notice on the property, it’s not really going to accomplish anything. Commissioner Poudrier said in the beginning he wasn’t cooperating, but in the last two months he has worked with us more than the other seven times he was before us. He moved from total arrogance and total disregard to moving in the right direction. Chairman Balinskas is trying to view these violations from a dispassionate point of view. We have several violations before us and in all my years of doing this, we have never gone on this long with a violation. Shouldn’t there be some Page 3 of 6 “recipe” or time frame that we should consistently follow? We should have that conversation at some other point. Commissioner Poudrier agreed that the commission should be consistent. The applicant is sitting right here, would you like to hear from him? Chairman Balinskas again stated that he is looking for a procedural way to deal with the violation. No disrespect to the applicant. Commissioner Young looked at his notes from last year. A cease and desist was issued last May. He agreed from a procedural point of view, the commission should act on this violation. We open ourselves up for others to come out and say, if you did it this way for him, then why are you only doing it this way for me? Commissioner Poudrier said things don’t have to be consistent. They should be based on merit. I think the merit shown in the last three months is better than before. Commissioner Young agreed that progress is being made, but we are showing inconsistency. Chairman Balinskas said we are putting the Town in jeopardy. We can get the Town sued by being inconsistent. At some point we need to put our hands around this. Technically, we still sit here today with no application in front of us, no mitigation plan, a lot of good thoughts and intentions, and I’m good with that, but that’s really all we’ve got right now and we still have a violation in front of us. Commissioner Cassetta suggested that we set a time frame that if he doesn’t come in within thirty days, we put it on the record. Commissioner Poudrier said everybody needs a little “wiggle room”. Chairman Balinskas commented that we said thirty days ago last month. How long do we continue to wait? Poudrier said he’s not leaving town. It’s getting better. You and I have opposite opinions and it’s good we get this out. Commissioner Pindar said that inconsistency is going to get us in trouble. Commissioner Cassetta agreed that we have to be consistent, but it is the duty of the commissioners to try to work with applicants in a good manner to try to work both ways. If it was a strict violation in a river, toxic waste, I’d say close him down right away. Chairman Balinskas said it is a significant violation of filling a watercourse. Commissioner Poudrier said the applicant has farming rights of use. This is a very gray area. I think another thirty days won’t hurt us. Commissioner Cassetta talked about his training and that give and take is necessary. Balinskas said he filled a wetland and that is a direct violation. Poudrier said he right of usage. Balinskas but not to fill a wetlands. So do we have a motion? Commissioner Young moved to place a certificate of notice on the property, seconded by Commissioner Pindar. The motion passed with Chairman Balinskas breaking a two and two vote in favor of placing the property on notice. b) Notice of Violation - Edward, Gary, and Richard Riedel - 1059 High Road Mr. Horbal reported that he was at the Riedel property and there looks to be new grading and encroachment at this site, even more today on a site visit than last month before the meeting. Mr. Horbal had encouraged the commissioners to look at the encroachment. Gary Riedel was present to speak to the violation. He said his family has been there more than fifty years placing fill there and it has never been a problem. D&S has been placing the fill over what he has been stabilizing. Mr. Riedel was surprised that seed is catching there and will continue to stabilize the embankment. There is silt fencing there, but it has been knocked over with additional fill. Chairman Balinskas wanted Mr. Riedel to understand that he could not go over the top of the slope. The contractor may have to help you pull back the fill and make a gradual grade so that seed will stick and grow there for stabilization. Mr. Horbal suggested that the embankment at least be mulched by the weekend to prevent any further erosion down into that wetland and get seed going at the same time. Get some hay and get some growth going. Commissioner Young mentioned that he thought this was virtually cleared up Page 4 of 6 so he didn’t go look at it last month. He wants the opportunity to drive by and see some seed and silt fencing in place. This goes back to last November. Mr. Horbal made an agreement with Mr. Riedel for him to call D&S for a meeting to understand where the fill has to be removed from and stabilized. Chairman Balinskas commented that we’re in the same situation with a time frame on this violation. Do we have a motion to put this on the land record? Commissioner Young’s notes go back to November. Mr. Riedel was asked to put up a silt fence, plant seed and stabilize. I thought it was being resolved. Chairman Balinskas said most of the commissioners have not had the opportunity to walk the prior property. Mr. Horbal was frustrated to see the activity and thought we were close to resolution. Mr. Riedel has tried to clean up the property. Chairman Balinskas was looking for resolution with a motion to place a certificate of notice with the Town Clerk. Commissioner Poudrier wants to give him thirty days before the notice is placed on the land records. Commissioner Cassetta did not want to add any burden to the owner. Mr. Riedel asked about landscaping requirements. Mr. Horbal made an agreement with Mr. Riedel for him to call D&S for a meeting to understand where the fill has to be removed from and stabilized. Commissioner Young wanted to hold off for lack of a time frame and lack of communication. Chairman Balinskas is looking for consistency and what makes since. The consent of the commission seems to be that we should wait for action until next month, and everyone needs to go out to see the property so there won’t be any excuses c) Notice of Violation - Paul Califiore, 61 Stillmeadow Lane, Berlin Mr. Horbal received a letter from MBA Engineering (Lewis Mirante) stating that he would be working with the Calafiore’s to obtain an as-built to show the placement of the building. The Calafiore’s were present to take questions. Mr. Horbal explained to the Commissioners. A written complaint came in regarding activity in this neighborhood. This is the Stillmeadow Steepleview Subdivision and as part of the approval, there were restrictions on about 15 of 40 of the lots and this property was suppose to stay in its natural state. The Calafiore’s are the second owners. There were stipulated areas, set-backs. Once we get an as-built, we’ll all know exactly where we stand. Chairman Balinskas requested the Calafiore’s come back next month. d) Notice of Violation - Boston & Maine Corporation - rear New Britain Road Mr. Horbal explained that the Boston-Maine Corporation has indicated that they will seek out the violating businesses that have encroached on their property. Chairman Balinskas suggested that a certificate of notice placed on the properties (by the Town) might give the railroad more to use in their defense in the future. Mr. Horbal will keep the Commissioners informed of future actions. *Chairman Balinskas requested that dates of future violations be added to the agenda to help keep track. Page 5 of 6 e)Lot 17, 17B, Block 16, #600 Edgewood Road discussion Chairman Balinskas referred to the e-mails that were on file with Town Engineer Art Simonian. Mr. Balinskas was requested to go the property with Mr. Simonian because Mr. Horbal was not involved with the request made by the Town to the property owner to correct some drainage issues that neighbors were complaining about. Mr. Balinskas will put his comments in writing to the effect that there should’ve been a permit for this kind of activity, but the Town approved the work prior to his knowledge. There is no action required by the Commissioners but Chairman Balinskas wanted to keep the Commissioners in the loop. f)Correspondence The Town Manager received a letter from the State of Connecticut, DEP regarding a Notice of Enforcement Action for Sunny Border Nurseries, Inc. and Stonetrough, LLC basically saying that the culvert that was installed on the property was inadequate and that they would need to install a bridge. g) IWWCC Regulations Review process led by Chairman Balinskas. ADJOURNMENT: Commissioner Cassetta moved to adjourn the meeting at 9:00 p.m., seconded by Commissioner Young. The motion passed unanimously. Lecia Paonessa Recording Secretary Page 6 of 6