REGULAR MEETING   Monday, January 7, 2008

EAST LYME CONSERVATION COMMISSION

MINUTES

Members Present:         Ed Hafner, Chairman, Cheryl Lozanov, Walter Prochorena,

                                    Norm Bender, Rich Gallagher, Chuck Reluga; Alternate Member Phyllis

                                    Berger was seated as a voting Alternate Member

Also Present:                            Keith Hayden, Conservation Enforcement Officer

                                    Andrew McKirdy, Ex-Officio, Board of Selectmen

                                    Laurie Corona, Keith Hall, Alternates

                                    Art Carlson, Open Space Presentation

Chairman Hafner called this Regular Meeting of the Conservation Commission to order at 7:40 PM after the previously scheduled Public Hearings.

1.       Pledge of Allegiance

The Pledge was observed

Mr. Hafner welcomed the new Alternate members and seated Alternate member Phyllis Berger at the table as a voting member. He stated that he would not be voting unless it was necessary to break a tie.

2.       Election of Officers

Mr. Hafner said that they would need to elect a Secretary, Vice Chairman and Chairman and suggested that they start with the position of Secretary of the Commission. He called for nominations for Secretary –

**MOTION (1)

Mr. Gallagher nominated Mr. Bender for the position of Secretary of the Conservation Commission.

Ms. Lozanov seconded the motion.

Mr. Hafner called for any other nominations –

Hearing none, he called for a vote on the nomination of Mr. Bender –

Vote:  6 – 0 – 0.  Motion passed.

Mr. Hafner then called for nominations for Vice Chairman –

**MOTION (2)

Mr. Bender nominated Ms. Lozanov for the position of Vice Chairman of the Conservation Commission.

Mr. Gallagher seconded the motion.

Mr. Hafner called for any other nominations –

Hearing none, he called for a vote on the nomination of Ms. Lozanov –

Vote:  6 – 0 – 0.  Motion passed.

Mr. Hafner then called for nominations for Chairman –

**MOTION (3)

Mr. Prochorena nominated himself for the position of Chairman of the Conservation Commission.

There was no second – Motion died.

Mr. Hafner called for any other nominations –

**MOTION (4)

Ms. Lozanov nominated Mr. Hafner for the position of Chairman of the Conservation Commission.

Mr. Bender seconded the motion.

Mr. Hafner called for any other nominations –

Hearing none - He called for a vote –

Vote:  5 – 1 – 0.  Motion passed.

Against:  Mr. Prochorena

3.       Additional Agenda Items

Mr. Hafner asked if there were any additional agenda items.

**MOTION (5)

Ms. Lozanov moved to add Item a. under #9. New Business – Open Space Presentation by Art Carlson

Ms. Berger seconded the motion.

Vote:  6 – 0 – 0.  Motion passed.

4.       Public Delegations

Mr. Hafner called for Public Delegations.

Paul Formica, First Selectman congratulated them and offered any help that his office might be able to provide them with. He said that he is looking at the possibility of dividing the Commission into two areas – a Conservation Commission and an Inland/Wetlands Commission. He said that this does not require a Charter change and while there has been discussion on this, he is asking for their input.

Ms. Lozanov asked what resources are being used to gather information on this.

Mr. Formica said that he was starting with the position paper from the Conservation Enforcement Officer.

Mr. Hafner noted that there has been previous conversation on this regarding the advocacy and regulatory aspects of the Commission.

Mr. Formica said that he welcomes hearing from the Commissioners what their position is on this.

5.       Acceptance of Minutes

a.       December 1, 2007 – Site Walk Notes

The Commission accepted the minutes into the record as submitted.

b.      December 3, 2007 – 392 Boston Post Road – Wade – Public Hearing Minutes

The Commission accepted the minutes into the record as submitted.

c.       December 3, 2007 – 116 Flanders Road – Public Hearing Minutes

The Commission accepted the minutes into the record as submitted.

d.      December 3, 2007 – 63A Walnut Hill Road – Gilligan – Public Hearing Minutes

The Commission accepted the minutes into the record with the following change as indicated:

Page 2 paragraph where Ken Sylvestri is speaking – in the second line change ‘they are been accessing’ to read: they have been accessing.

e.   December 3, 2007 – Regular Meeting Minutes

The Commission accepted the minutes into the record as submitted.

6.       Ex-Officio Report

Mr. McKirdy congratulated the newly elected officers and noted that the Board of Selectmen recently appointed some new members to this Commission. He also noted that in the fall that the Commission submitted some proposed ordinances and some fines and a hearing board and that this was not acted upon by the out-going Board. It is now being reviewed by legal counsel and they are waiting to see how the ordinance is framed and they will then look for input from them.

Mr. Prochorena asked where the letter was from the Town Attorney.

Mr. Hayden said that he has it and that he will get it out to them.

Mr. McKirdy suggested that they may want to update the fines as some time has passed since they were first proposed. This is something that they can discuss.

7.       Public Act 87-533 Matters (Pending Applications)

a.       63A Walnut Hill Road – Gilligan.  Construction of Driveway.  Assessor’s Map 48, Lot 54.             Public Hearing Opened December 3, 2007.

Mr. Hafner said that they had just continued this to February 4, 2008.

b.      115 Flanders Road – Orvedal.  Clearing to Edge of Pond.  Assessor’s Map 21.1, Lot 57.               Public Hearing Opened December 3, 2007

Mr. Hafner said that they had just continued this to February 4, 2008.

c.       89 Walnut Hill Road – Walnut Hill Chase LLC.  Subdivision.  Assessor’s Map 52, Lots 57, 57-1, 123-1, 123. Public Hearing Rescheduled for February 4, 2008.

Mr. Hafner noted that this had been previously rescheduled for February 4, 2008.

d.      232 Roxbury Road – Patel.  Demo/Reconstruction.  Assessor’s Map 10, Lot 10.                               Date of Receipt: January 7, 2008.  Decision Deadline:  March 7, 2008.

Mr. Hafner said that this evening they were only to determine if they felt that this application would require a Public Hearing.

Donald Gerwick, PE with Gerwick-Mereen, 1020 Hartford Turnpike, Waterford, CT explained the plans pointing out where the existing structure is and that two-thirds of the lot is wetlands. There are encroachments from some 30 to 40 years ago that occurred prior to the Patel ownership of the property. Mr. Patel would like to remove the structure and build a new septic system to modern day standards, farther from the wetlands. They are not proposing any additional impact on the wetlands and they will also remove the debris from the wetlands and put a border of native plantings and boulders there to contain the lawn so that it does not ‘creep’ into the wetlands as has happened before.

Mr. Gallagher asked about the approximate area of removal and what was in it.

Mr. Gerwick said that it was heavily overgrown with briars, and had an old garden and some old chicken shed wire as he recalled.

Mr. Hafner polled the Commission members regarding holding a Public Hearing for this application.

The consensus of the Commission members was that a Public Hearing would not be necessary and that they could consider this application at their next meeting.

Mr. Hafner said that they needed to discuss the request for a waiver of part of the fee as they had decided that no Public Hearing would be necessary.

**MOTION (6)

Ms. Lozanov moved to waive the fee of $750 in the matter of 232 Roxbury Road – Patel, Demo/Reconstruction.

Mr. Prochorena seconded the motion.

Mr. Gallagher said that he understood that the request was for a partial waiver of the fee.

Mr. Gerwick said that was correct and that the $750 is above and beyond the $180.

Ms. Lozanov noted that the names are on the application in two different ways and that this should be clarified.

Mr. Gerwick said that was correct and that it should be Patel &, and that he will be sure that this is cleared up.

Vote:  6 – 0 – 0.  Motion passed.

8.       Old Business

a.       63a Walnut Hill Road – Gilligan – Notice of Violation.

Mr. Hafner said that this remains as it is.

b.  116 Flanders Road – Orvedal – Notice of Violation.

Mr. Hafner said that this also remains as it is.

c.   Upper Kensington Drive – Cease and Desist Order.

Mr. Hayden recalled to the Commission that at the last meeting that they indicated that they wished to pursue this through the legal court system. He has contacted the Town Attorney and the papers were filed and as of this time, he has not heard anything further.

Mr. Prochorena asked what the infringement was.

Mr. Hayden said that a back lot had been filled in and that it went outside of the conditions of the permit. The applicant was told to come back with a plan to remedy the Cease & Desist and they did not come back so they have chosen to seek the fines as defined by the law.

9.       New Business

a.  Open Space Presentation by Art Carlson

Art Carlson explained that he was part of a group that met for a year or so and worked on defining open space. They identified how much there is in the Town by putting together all the areas of 10 acres or more that has one or no houses on it as this is what is ‘perceived’ as open space. This property is frequently owned by someone and when the owner decides to build on it, the people who have been walking on it or using it for years will frequently come out and say that they thought that it was open space when in effect they have been trespassing on someone’s property. A map showing this type of open space tends to look like a lot of open space.

However; this map changes greatly when you look at what they have called open, open space – which is space that the public can go on. The next level is actual open space and in this mapping it can be seen that they really have not spent a whole lot on the property outside of some in the Oswegatchie Hills area. In this way, they have attempted to show and define how open or closed the land is. In all of this research, they found that the single most important role that open space could play is for the protection of the drinking water as a vast area of East Lyme sits on top of aquifers that supply water to the people. There are four (4) watershed areas and aquifers are located in each of them. Aquifer areas are water saturated sand and gravel sponges. Therefore the area within a watershed is important so they looked at what key pieces of property they would like to control to protect the drinking water for hundreds of years in the future and – also combine this use with other uses. During this process, they came to some of the same conclusions as the Eight Mile River Study did regarding open space - such as –

¨             It could improve the public access to the water

¨             Active & passive recreation use (footpaths)

¨             Forest block/greenway – such as: it is better to have one 100 acre plot than 100 one-acre plots

¨             Prime farmland – open space can be used for this purpose

¨             Unique geological features

¨             Cultural/historical value and preservation

¨             Biological diversity is preserved

He said that they weighed all of these items in order to come up with a rational theme for grading so that the system is written to exist beyond the time of its’ people. He then noted the various properties involved and those that are of interest to them due to their location over aquifers. He said that hey have identified those pieces of land that are of interest in the event that the land comes up for sale or donated. He noted that this is just a part of the larger picture just as books are part of a library.

In summary, he said that the gains that could be made from this identification and process are –

¨            Protection of the drinking water supply

¨            Footpath expansion

¨            The agricultural level could be increased

¨            More land for active recreation

¨            Lake and waterfront access

¨            The potential to have open space areas in large contiguous blocks

¨            Providing both physical (walking, riding bikes, etc.) and mental (visual vistas, nature) health

All of this provides resources to the public and should be a major investment in the future.

Mr. Prochorena expressed interest in the fact that property that is turned over to open space comes off of the tax rolls and then others have to cover for it.

Mr. Carlson suggested that what would be gained far outweighed what would come off the tax rolls. He said that he welcomed discussion and that people could meet with him after the meeting if they should so desire.

10.   Chairman’s Report

Mr. Hafner welcomed the three (3) new Alternate members to the Commission and explained some of their procedures. He said that they work in two areas – the Public Hearing and Regular Meeting and that no decision is to be made ahead of time and that they are to act in a fair and impartial manner with respect to both sides. The Commission is a public Commission so all decisions are done in public, in the open. There are no private meetings. They also have site walks to visit the various properties. These are not for discussion but rather for visual purposes only. Should they have any questions, they should contact Mr. Hayden for a copy of the regulations booklet. They also sometimes have FOI issues which relate to the transparency of the issue.

Mr. Prochorena suggested that the new members read the Commission regulations and the State DEP regulations so that they have background information by which to get them acquainted.  

11.   Conservation Enforcement Officer Report

Mr. Hayden passed out Attorney O’Connell’s review on the Ordinance Establishing Fines for Violation of Inland Wetlands and Watercourses Regulations in which Attorney O’Connell recollected that they had prepared a draft of such an ordinance in 1998 when the issue was considered by the Board of Selectmen.

Mr. Hayden suggested that they have three (3) types of situations: the first being the homeowner who did not know that they needed a permit to do something and the violation is very light in nature with no real intent. They are more than happy to do whatever is necessary to remedy their oversight. He recommended that the fine be $15 if they need to assess one. The next situation would relate to people who conduct regulated activities in the upland review area on a much larger scale without a permit. Here he suggested that the fine structure mimic the fee structure and be based on square feet. The third situation would relate to regulated activities conducted without a permit in a wetland or watercourse calculated to the area upon which the regulated activities have occurred with a higher fine structure based upon the square feet.

Ms. Lozanov asked about repeat offenders and how they would be treated.

Mr. Hayden explained that they could be fined by the occurrence/incident or daily until the situation is corrected. The fine is one method of dealing with a violation but they also have the Notice of Violations and Cease & Desist orders with the ultimate remedy being to go through the court system.

Ms. Lozanov asked if the violator would also have to cover the court costs and legal fees that would be incurred by the Town.

Mr. Hayden said that would be up to the Judge to decide.

Mr. Hafner said that this could also be resolved by Town Counsel and perhaps not get into the courts.

Mr. Hayden noted that by law $1000 is the maximum allowed fine that they can assess.

Mr. Hafner noted that for at least the past 25 years that they have not had any fines in place and that they have taken care of violations with a Notice of Violation or a Cease & Desist placed on the property record and that this has been successful in getting the violation cleaned up. He said that he does not think that they have to fine tune the fine structure or update them as they are adequate and can be assessed everyday if they chose to do so. He suggested that they have a subcommittee fine tune this and that if they are happy with it, then they can recommend that this be adopted.

Mr. Reluga said that he would like some time to review what has been passed out. He also asked how this compares with neighboring Towns.

Mr. Hayden said that there are very few Towns that have fine structures.

Ms. Lozanov asked if, when a violation occurs and the homeowner is notified and contacts them – could that be the stopping point for the assessment of the fine so that it does not keep adding up.

Mr. Hayden explained that it would not start with the fine compounding each day. It would just be one fine. While it could be each day that the violation exists, he said that he would not propose that.

Mr. Hafner said that most people correct the violation with the Notice of Violation and that it does not have to get to a fine stage. He suggested that they review the information and discuss it further at their next meeting.

Mr. Reluga asked Mr. Hayden about the soil testing at the bus site.

Mr. Hayden said that he revisited the report to the DEP and found that they were satisfied with it so there was no need for further action.     

12.   Adjournment

**MOTION (7)

Ms. Lozanov moved to adjourn this January 7, 2008 Regular Meeting of the East Lyme Conservation Commission at 9:05 PM.

Mr. Prochorena seconded the motion.

VOTE:  6 – 0 – 0.  Motion passed.

Respectfully submitted,

Karen Zmitruk,

Recording Secretary, Pro-tem