Town of East Hampton, CT
20 East High Street, East Hampton, CT 06424
04/30/2008 IWWA Minutes
East Hampton Inland Wetlands & Watercourses Agency
Regular Meeting
April 30, 2008
East Hampton Middle School Commons


1.      Call to Order:  Chairman Foran called the meeting to order at 6:31 p.m.

Present:  Chairman Jeffry Foran, Vice-Chairman Joshua Wilson, Members David Boule, Alannah Coshow, Dean Kavalkovich (6:39 p.m.), Marc Lorah, Peter Wall (6:36 p.m.), Alternate Members Maureen Heidtmann and Scott Hill were present.  The Town Attorney, Janet Brooks (7:00 p.m.); Building Administrator, James Carey; and the Town Planner, David Dodes, were also present.
Absent:  All members were present.

2.      Seating of Alternates:  Chairman Foran seated Ms. Heidtmann and Mr. Hill as voting members at this time.

3.      Approval of Minutes:
        A.      February 27, 2008:  Mr. Wilson moved to approve the minutes of the February 27, 2008 regular meeting minutes as submitted.  Ms. Coshow seconded the motion.  The motion carried unanimously.

        B.      March 19, 2008:  Mr. Wilson moved to approve the minutes of the March 19, 2008 special meeting as submitted.  Mr. Boule seconded the motion.  The motion carried unanimously.

        C.      March 26, 2008:  Mr. Wilson moved to approve the minutes of the March 25, 2008 regular meeting as amended.  Mr. Hill seconded the motion.  The motion carried unanimously.

4.      Agent Approval:  None.

5.      Communication, Enforcement, and Public Comment:
Communications:  There will be a presentation on May 14, 2008 at 7:00 p.m. in the East Hampton Library Community Room on the HOME Connecticut program.  This is an incentive-based zoning program which could eliminate further 8-30.g applications.  The State provides a financial incentive to communities to work with developers and incorporate affordable housing units within subdivision and other developments.

Enforcement:  Mr. Carey reported that approximately three weeks ago he received a couple of reports about activity at Theater Square in the wetlands.  Brush and vegetation was being cleared on the south side of the building.  He immediately went to the site and stopped the contractor.  The owner was notified and pulled the contractor off the job.  The soils that had been disturbed were replaced and stabilized with wood chips.  Due to the prompt response of the owner, a formal notice of violation was not issued.  Mr. Carey will report on the status of the mediation required by this permit for the next meeting.  He will also explore the possibility of replacing the vegetation that was cut down with appropriate wetland species.
Chairman Foran unseated the alternate members at this time.

Public Comments:  None.

6.      Reading of the Legal Notice:  Mr. Dodes read the legal notice for this evening’s public hearing.

7.      Public Hearings:
        A.      Application of James Haydu, 15 Anderson Way, for Pond Dredging for Residential Improvement by Homeowner, M 5/B 2/L 7.  James Haydu was present to discuss his application.  The agency discussed the plans as presented at this time.  This submission included modifying the pond as designed by Richard Snarski, Registered Soil Scientist.  Mr. Carey recommended that any approval should be conditioned that the plans should include a statement that a qualified wetlands professional will oversee the work and provide a letter report to the Agency.  
Chairman Foran opened the public hearing at this time.
David Fuka, 7 Anderson Way, discussed his many concerns with this application and the applicant.
Roger Anderson, 17 Anderson Way, stated that this application will not improve the neighborhood and is concerned that it will pose a health and safety risk.  He doesn’t understand the necessity of this pond.
Patience Anderson, 17 Anderson Way, urged the Agency to require oversight of this application should it be approved.

Chairman Foran recessed the meeting at 7:10 p.m.

The meeting was reconvened at 7:17 p.m.

The Chairman questioned Mr. Carey regarding the intentions and history of this application.  Mr. Carey discussed the history of the application.  The Agency members discussed their concerns regarding this application, including the history, current proposal, conservation area, and complications.

Janet Brooks indicated that it would necessary to demonstrate a connection between the reason for the conservation easement and the application before the Agency; therefore, it would seem to satisfy that, in this case, it would be appropriate.

The Agency is interested in researching the conservation easements language relative to this site.  There is concern among the members regarding complications resulting from changing the conservation area.

Mr. Haydu discussed that he believes this pond to be a great benefit to his family, property, and the area.  The plan now is to improve the pond to further benefit the habitat that has developed there.

The Chairman pointed out that the creation of this pond my have developed into a viable habitat for wetlands creatures; however, it was created illegally without the benefit of a wetlands permit.

Mr. Fuka, 7 Anderson Way, requested the Agency read the 1st letter written by the Town’s engineer.
Mr. Foran moved to continue this public hearing to the next regularly scheduled meeting.  Ms. Coshow seconded the motion.

Several members discussed having a site walk on the location of the application.  The Agency requested additional information on the habitat that exists presently and how to protect the inhabitants if the pond is filled in.
The Chairman called for the vote.  The motion carried unanimously.

8.      New Application:  None

9.      Continued Applications:
        A.      Application of Town of East Hampton, Department of Public Works, Main Street Bridge Crossing Pocotopaug Creek, Main Street Bridge Replacement.  Robert Russo of CLA Engineers was present to discuss the application.  The bridge is located down slope from the town library.  It is next to the Gong Bell property.  This is a perennial stream that leaves Lake Pocotopaug, flows through the center of town, under this bridge and down Skinner Street.  The existing bridge consists of a 12’ concrete arch that is badly deteriorated.  The head wall is coming apart.  The rail is in such bad shape that if it were struck by a car it is entirely possible that it would give way.  The bridge is badly in need of replacement.

The new bridge has been designed by structural engineers.  The site work has been designed by civil engineers.  A wetlands specialist has reviewed the creek and determined the best crossing.  Mr. Russo would now like the Agency to review the project.  He described the proposal and explained the importance of completing this project during the summer while there would be no school bus traffic.  Mr. Russo described the types of contamination that could be present in the soils and explained that the soils would be removed from the site.  He reported that the DEP will not require a formal de-watering permit.  The Agency viewed the plans for the bridge.

Mr. Carey explained the urgency of the project and requested that any additional information the Agency would like be made a condition of approval so as not to slow the project down.  He explained that the Town’s engineering firm, CLA Engineers, would be responsible for the oversight.

Mr. Foran moved to approve the application with the conditions that all erosion and sedimentation control be in place and inspected by Town staff prior to commencement of construction, onsite oversight be present during the excavation and removal of all contaminated soils, and that the project be bonded through the Public Works Department as determined by Town staff.  The reasons for this approval are that it has a minimal impact on the existing watercourse and is an improvement to stormwater handling.  Mr. Wilson seconded the motion.  The motion carried unanimously.
        B.      Application of Peter Marlowe Forest Products, 162 High Street, Timber Harvest (agriculture & forestry), planned harvest and removal of timber products – M~32/B 85/L 6 & 6B.  Peter Lesmerises was present to represent Peter Marlow Forest Products.  He is a licensed forester in the State of Connecticut.  He explained that this is a timber harvest with no wetlands crossings.  There are wetlands on the property.  There are two landings proposed.  One will be an existing driveway on East High Street and the other is an old landing from Bear Swamp Road.  The Bear Swamp Road landing will be mulched and seeded at the completion of the harvest.  Water bars will be in place where needed.  The trees have been marked.  There will be approximately 600 trees, 200,000 board feet, removed.  The timber will be removed by skidder.  The operation time will be this summer.  There is an intermittent stream running through the property with a wet area alongside it.  By employing the two landings there will be no crossing of the wetlands.  The landowner will be selling the tops for firewood.  The tops will be stabilized and reduced to head level.  The buffer strip between the work area and the stream will be a minimum of 50 feet.

Mr. Wilson moved to approve this application with the following conditions:

        1.      Timber harvesting shall be conducted when the ground is frozen or in a dry time of year;
        2.      A buffer area of a minimum of 50 feet is required along the wetlands and watercourses;
        3.      Buffer strips with 50% or more of the basal area shall be retained along the stream and wetlands;
        4.      Water bars will be installed at any trails where there are steep slopes for erosion control;
        5.      All tops shall be slashed to head-height so that they may be safely cut and removed, at a later date, for firewood;
        6.      The landing at Bear Swamp shall be mulched and seeded upon completion of logging operations; and
        7.      Town staff shall be notified prior to commencement and upon completion of the activity.
This logging operation is consistent with logging operations reviewed in the past and is beneficial to the forest.  Ms. Coshow seconded the motion.  The motion carried unanimously.

        C.      Application of James Marino, 9 Huckleberry Acres, for activity in the buffer/setback area to construct a new residential single family unit – M~6A/B~57/L~6B-5:  Mr. Carey reported that he received a call at his home at approximately 5:30 p.m. this afternoon from the applicant requesting that the application be withdrawn at this time.  Mr. Carey has asked that the applicant provide a written request for the withdrawal to his office during business hours tomorrow.

Mr. Foran moved to deny the application.  There being no second the motion failed.

The Chairman and Mr. Hill discussed with Mr. Carey and Ms. Brooks their concern that in the past they have always required requests for withdrawal be in writing.

Mr. Foran moved to accept the applicant’s request to withdraw this application made to Jim Carey.  Ms. Coshow seconded the motion.

The Agency continued to discuss the need for a request in writing.

The Chairman called for the vote on this motion.  The motion carried unanimously.

        D.      Application of Pelletier Development Company, LLC, Belltown Place, 37 South Main Street, for activity in the buffer/setback area including filling, excavating, land clearing/grubbing, roadway construction, and drainage improvements to construct a new residential development for multi-family/condo – M 20/B 51/L 27.

Mr. Hill recused himself from the meeting at this time.

Mr. Carey updated the Agency on the application.  He explained that the public hearing for this application was closed at the last meeting.  At the time of that meeting the Agency received a number of documents, plan revisions and corrections.  They have all been submitted to the Town’s various Staff and Consultants for the necessary review.  This process is ongoing and final reports have yet to be received.  Mr. Carey explained that in addition to the new information he has specifically requested that the Town Engineer, CLA Engineers, look into the phasing plan, its adequacy, and how it will relate with the E & S plan.

Mr. Carey further explained that his office is in receipt of the copies of the revisions to the plans that were not available on the evening that the public hearing was closed (One set of revised plans and one Drainage Calculation Report were received at the public hearing).  The PZC and the Planning Office are both in receipt of further revisions since the close of the IWWA Public Hearing.  It is unclear at this time how these additional revisions will relate to this Agency’s review.  Further information has been requested of Robert Russo, CLA Engineers, regarding the efficacy and real-life issues of the submerged gravel wetland.  Further concerns were discussed with the Agency.

Attorney Janet Brooks discussed the time-frame issues with the Agency.  It will be necessary for the Agency to receive an extension tonight.  She clarified that failure to act does not constitute an approval.  The applicant can grant an extension.  If the applicant believes that the time frames have been violated and it is not in the applicant’s interest to allow that to continue, the applicant may withdraw the application from this Agency and file it with DEP for approval of the wetlands permit.  She recommends that the Agency inquire of the applicant whether they are interested in consenting to an extension until the next meeting or if they wish to withdraw and submit their application to DEP.

The Chairman asked the applicant if they would be willing to grant the Agency an extension.

Joe Pelletier was present to represent the applicant and responded that he was not prepared for this inquiry and had no answer.

Attorney Brooks suggested that since the applicant has not expressed intent to withdraw the application, the Agency should continue to deliberate until such time as that intention is made clear.

Attorney Brooks continued to advise the Agency and discussed the definition of a water company under General Statute 16-1.  She further advised that a three-pronged motion would be necessary.  The first prong should address whether the Agency agrees that the applicant’s activity, constructing a water system, falls within the definition of a water company as defined in General Statute~16_1.  The second prong should address whether the activities are for facilities necessary to the withdrawal of water in connection with public water supplies.  The third prong should determine whether the water system is an activity, or use, as of right.

The Agency further discussed their purview and the actions they may take as the IWWA.  They also discussed the function of the exclusive service area (ESA) and provider.  Attorney Brooks distributed a draft permit submitted by Attorney Branse which she has reviewed and marked with suggestions.

Mr. Foran moved to continue this application to the next regularly scheduled meeting on May 28, 2008.  Mr. Wilson seconded the motion.  The motion carried unanimously.

10.             New Business:
        A.      Proposed New Regulations to IWWA Regulations:  New Section 8.9.  Chairman Foran explained the proposed new regulation and reported that Attorney Brooks has researched the recommendation and has reported that there are no concerns to report.  Attorney Brooks explained that DEP would need notification of the change, the public hearing notice must be issued according to statute, the Town Clerk must be in receipt of the proposed regulation changes 10 days before the acceptance of the regulation change, and the effective date must be set at the public hearing.  The effective date is typically set for the date of publication.  Finally another copy of the regulation after it has been accepted must be provided to the DEP.

Attorney Brooks explained that if revised plans are received after the deadline for receipt of information pursuant to this proposed regulation, the applicant will have the option of consenting to a deadline extension or the Agency will have the right to decline the application because it could not be reviewed by experts prior to the imposed deadline.

Mr. Carey explained that IWWA is able to make this requirement because their regulations do not impose a hard deadline for a decision by the Agency.

Mr. Foran moved to send the proposed new Regulation Section 8.9 to the DEP and set a Public Hearing for the next regularly scheduled meeting on June 25, 2008.  Mr. Wilson seconded the motion.  The motion carried unanimously.

11.             Old Business:  
        A.      Lawn Fertilizer Containing Phosphorous:  The Chairman reported to the Agency that the Town Council held a workshop regarding this proposed ordinance last night.  Mr. Wilson reported the events of the workshop and he believes the general consensus is that the ordinance should be passed.  There is some concern regarding the restraints being placed on retailers.

12.     Adjournment:  Ms. Coshow moved to adjourn the meeting.  Mr. Wilson seconded the motion.  The motion carried unanimously.

The meeting adjourned at 9:30 p.m.

Respectfully submitted,
Daphne C. Schaub
Recording Secretary