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EAST LYME CONSERVATION COMMISSION

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PUBLIC HEARING I MINUTES

EAST LYME CONSERVATION COMMISSION

2 FERRO COURT - PFANNER

Monday, APRIL 7th, 2008

MEMBERS PRESENT:   Ed Hafner, Chairman, Cheryl Lozanov, Walter Prochorena, Norm  Bender, Chuck Reluga and Phyllis Berger, Alternate Member seated as a Voting Member

ALSO PRESENT:          Robert Pfanner, Applicant

                                    Keith Hayden, Conservation Enforcement Officer

                                    Laurie Corona Alternate

                                    Keith Hall, Alternate

                                    Andrew McKirdy, Ex-Officio - Board of Selectmen

1.       2 Ferro Court – Pfanner. Dredging of Pond. Assessor’s Map 20.1, Lot 11.

Chairman Hafner called the meeting to order a 7 PM and introduced the Commission members and Conservation Enforcement Officer to the public noting that he was seating Phyllis Berger, Alternate member as a voting member. He stated he would not be voting unless it was necessary to break a tie.

**MOTION (1)

Ms. Lozanov moved to open this Public Hearing.

Mr. Bender seconded the motion.

VOTE:  5 – 0 – 0.  Motion passed.

Mr. Hafner opened this Public Hearing at 7:01 PM. He explained the protocol of the Hearing and asked that if the public has questions that during the public comment time, that they address their questions to the Commission. He then asked Mr. Hayden to bring them up to date on this application.

Mr. Hayden said that he had a list of twelve (12) exhibits that have been received for this application. He then read them into the record (copy attached at end of Minutes).

Mr. Hafner then called upon the applicant or their representative to present evidence to the Commission regarding this application.

Robert Pfanner, owner and applicant said that the pond is fed by two intermittent watercourses. The pond was put in about 35 years ago and over the years the sand from the road and the chip seal paving of the roads along with the leaves from the sugar maples and fish feces has accumulated and formed 1½ - 2 feet of ‘muck’ at the bottom of the pond. This coupled with the drought of last year and the low oxygen level in the pond caused all of the fish to die and the pond has become a mess. The nitrate and Ph levels are also low. He said that he checked with Mr. Fortunato and was advised to make the pond deeper and to also put in two (2) aerators which will keep the oxygen level up. He said that he has five (5) articles supporting the concept that the extra depth and installation of the aerators should be adequate to the health of the pond. He said that there is also a small siltation basin at the entrance to the pond. He pointed out on the plan where the muck taken from the pond had been placed. Previously there was a question about testing the soil so he had it tested by Bruce Morton and it shows no pesticides or heavy metals of any consequence – he submitted this report for the record.

Mr. Hafner entered the report on the dredged materials into the record as Exhibit 13 and asked if there were any questions from the Commission –

Mr. Prochorena asked the size of the pond in sq. ft.

Mr. Pfanner said that he did not have that information with him in sq. ft. however it is about .15 of an acre.

Mr. Prochorena asked where the water for this pond originates from.

Mr. Pfanner said that it comes from the street; there are culverts that feed it and also any ground water that gets in.

Mr. Prochorena asked if the koi fish that he had in the pond eat all of the vegetation.

Mr. Pfanner said no, not at all – and he had them in the pond for 30 years and they do not eat everything. He added that he feeds them koi food and that it costs him some $60 - $70 per week in the summer to feed them. The food is thrown on the water surface and in a matter of a few minutes they eat it all so none floats to the bottom.

Mr. Prochorena asked where the stuff that was dredged was put.

Mr. Pfanner said that he has a slope in his front yard and that it was put there.

Ms. Lozanov asked when/if he would expect to dredge again.

Mr. Pfanner said that he expects that it would be never as the Town is no longer using sand or chip sealing and he has taken down the sugar maples that have caused the leaf problems in the pond. Plus there will be aerators to keep the oxygen level up.

Ms. Lozanov asked if he has taken down all of the trees and what would go there.

Mr. Pfanner said that he would put fir trees there as they do not have leaves that would go into the pond. The needles tend to drop below the trees themselves. 

Mr. Reluga said that they talk about invasive plants and that he thinks that they should also talk about invasive animals. He said that he knows that koi fish are illegal in Maine as they are afraid that they will contaminate the trout streams. In Montana they are also careful with them as they do not want them contaminating the drinking water.

Mr. Pfanner said that the koi cannot get out of the pond. He said that a heron, hawks or seagulls have caught some of his fish for food and that the koi eat their offspring so it is rare that they grow to adulthood or expand in numbers that would be a detriment to the pond.

Mr. Prochorena asked where the run-off from the pond goes.

Mr. Pfanner said that it would go behind the prison.

Mr. Hafner asked if there is a lot of overflow from the pond.

Mr. Pfanner said that there is some during the wet season – which is now and a bit during periods of heavy rain.

Mr. Prochorena asked when he would start the dredging.

Mr. Pfanner said; as soon as he is granted the permit.

Mr. Prochorena said that while he is dredging that the water would not flow to the stream for those couple of days and that it could have an effect.

Mr. Hafner asked Mr. Hayden if he had any concerns about this.

Mr. Hayden said that he has not figured out the small amount of water that would not flow however; he does think that a positive effect of this is that the silt will not be going there. 

Mr. Hafner asked if there was anyone from the public who wished to speak regarding this application –

Jim Condon, 1 Ferro Court said that his parents own 1 Ferro Court and that there is a portion of the pond not on Mr. Pfanner’s property that collects drainage. He said that for most of the year that it is dry. His parents and the Pfanner’s have been neighbors for over 20 years now and they used to joke that they would watch the birds eat his expensive koi. He said that his parents have no objection to this and do not see it as a problem.

Armand Giroux, 6 Winchester Court said that he lives in a cul-de-sac behind Mr. Pfanner. He said that the back storm drain that was alluded to as a stream has silted in substantially and the clearing of it lies more with the Town as he went to the Town and they did clear it out some years ago as it causes flooding on his property when it is silted up. He asked if the spillway is going to be more active and if so, would it silt up more because if it does, it will back up to his property. He said other than that he is not terribly concerned as it is only one time of the year that it does that.

Mr. Pfanner said that once the pond is filled that it will be exactly the same as it has been and will hold the same level. He added that there never was any siltation going out of the pond.

Ms. Lozanov asked about the corrective measures in the stream –

Mr. Pfanner said that he wished to add a rock to his small waterfall.

Mr. Giroux said that he wanted to say that he was not saying that the siltation to the storm drain comes from this pond, and - that he knows that he will have to deal with the sand problem in the catch basin with the Town.

Mr. Hafner asked if there were any further questions or comments –

Hearing none –

**MOTION (2)

Ms. Lozanov moved to close this Public Hearing of Pfanner, 2 Ferro Court.

Mr. Reluga seconded the motion.

VOTE:  5 – 0 – 0.  Motion passed.

Mr. Hafner closed this Public Hearing at 7:35 PM.

Respectfully submitted,

Karen Zmitruk,

Recording Secretary, Pro-tem

REGULAR MEETING   Monday, APRIL 7th, 2008

EAST LYME CONSERVATION COMMISSION

MINUTES

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

                                    Norm Bender, 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, Alternate

                                    Keith Hall, Alternate

Chairman Hafner called this Regular Meeting of the Conservation Commission to order at 7:36 PM after the previously scheduled Public Hearing.

1.       Pledge of Allegiance

The Pledge was observed

Mr. Hafner 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.       Additional Agenda Items

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

There were none.

3.       Public Delegations

Mr. Hafner called for Public Delegations.

There were none.

4.       Acceptance of Minutes

a.       January 7, 2008 – Regular Meeting Minutes

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

Page 2 first paragraph, first line under public delegations where Paul Formica is speaking – change the word ‘them’ to read ‘the Commission’.

b.      March 3, 2008 – 116 Flanders Road – Orvedal - Public Hearing Minutes

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

Page 1 after the vote on MOTION (1) – Change the paragraph to read: ‘Mr. Orvedal stated that at the 1st meeting he was asked to provide more information which he had provided to Mr. Hayden. Mr. Orvedal stated that he had included an entire site plan and added contour lines to show grading and notes stating what he will be doing with the stone and landscape details.’

Change the next sentence to read: ‘Ms. Lozanov asked where the stones that were removed from the pond will be placed.’

c.       March 3, 2008 – 63a Walnut Hill Road – Gilligan – Public Hearing Minutes

The Commission accepted the minutes into the record as submitted.

d.      March 3, 2008 – 2 Ferro Court – Pfanner – Show Cause Hearing Minutes

The Commission accepted the minutes into the record as submitted.

e.   March 3, 2008 – Regular Meeting Minutes

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

Front Page under public delegations in the first line where Creig Peterson is speaking – change ‘displease’ to read ‘displeasure’.

f.  March 1, 2008 – Site Walk Minutes

The Commission accepted the minutes into the record as submitted.

5.       Ex-Officio Report

Mr. McKirdy said that the Board of Selectmen is still working on the language for the separation of the Conservation Commission and the Inland Wetlands Commission. They will also be taking up the ordinance on the recommended fines which is also with the Attorney for review. He said that they hope to soon be able to put this to a Public Hearing.

Ms. Lozanov said that she had read that Ledyard also had instituted fees.

Mr. Prochorena asked about the proposal of separating the Commission duties as the Conservation Commission was charged with this by Statute.

Mr. McKirdy said that is true and that he would anticipate that the current Conservation Commission members would form the Commission on Inland Wetlands & Watercourses and that the enforcement duties would go with the Conservation Commission. The details on membership could be decided later in the event that some people wished to be on the enforcement Commission.

Mr. Prochorena and Mr. Bender commented that seemed like a clean way of doing this split.

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

a.       24 Pattagansett Drive – Danila.  Permit Modification, Dock.  Assessor’s Map 30.2, Lot 113.

Mr. Hafner asked Mr. Danila to present this to them.

Don Danila, 24 Pattagansett Drive said that he had two matters to bring before them. The first is the planting plan for the area near the lake. It will include dogwood trees of not more than 10’ high; goats beard, a perennial of not more than 6’ high and a large leaf perennial with a 1’ size leaf that grows from 3’ to 5’ in height and is non-invasive. The second matter is that of the construction of a small dock for recreational use of the property. It would be comprised of lightweight, strong and durable aqua-deck on an aluminum frame. The aluminum pipes are non-erosive and would have mud pads on the deep end for support. There is area in-between the slats for sun exposure to go below the structure.

Ms. Lozanov said that she noticed cat mint on the landscape plan and that it can be invasive along with holly. She said that he would have to be careful with the selection as many of these are not native and can be invasive. She asked that they pick the non-invasive species.

Mr. Danila said that he will work with the landscape architect that he has engaged for this project.

Mr. Bender asked how close the plantings were to the lake and if there is a need for a silt fence.

Mr. Danila said that they would be digging very small holes; they are around 15’ away and the holes would be filled as soon as they are dug.

Mr. Bender asked if he would be mulching the plants.

Mr. Danila said that the plantings near the house would be mulched however he had not thought about mulching the ones near the lake.

Mr. Bender suggested that they be mulched.

Mr. Hayden suggested that the plantings be mulched with natural, non-dyed cedar mulch.

Mr. Prochorena asked the length of the planting area.

Mr. Danila said that it is about 60’.

Mr. Hafner suggested that more plants is better from their point of view even though they will grow and fill in. He asked what Mr. Danila’s neighbors have.

Mr. Danila said that most of his neighbors have nothing but mowed lawns to the waters’ edge.

Ms. Lozanov offered the listing of plant species that she has that can be used to choose the non-invasive types.

Mr. Danila said that he would let his landscape architect, Creative Contours of Haddam, CT know.

**MOTION (1)

Mr. Prochorena moved to accept the application as complete.

Mr. Reluga seconded the motion.

Ms. Lozanov said that she would accept it once the planting plan is in place.

Mr. Hafner said that could be a condition of the approval.

Vote:  5 – 0 – 0.  Motion passed.

**MOTION (2)

Ms. Lozanov moved that WHEREAS, the East Lyme Inland Wetlands and Conservation Commission has considered all evidence submitted in support of the permit modification request for permit number 04-21M to construct a dock 4’ x 16’ in Pattagansett Lake at 24 Pattagansett Road as shown on plan entitled “Landscaping Plan for 24 Pattagansett Drive, East Lyme, Connecticut dated February 12, 2008” (Assessor’s Map 30.2, Lot 13).

WHEREAS, the Commission finds that the applicant has successfully demonstrated the following:

a.  The proposed dock will not affect existing drainage patterns, water table or water quality.

b.  The project enhances the suitability of the area for recreational or aesthetic enjoyment.

c.  There are no preferable alternate locations on the subject parcel for the proposed activities.

THEREFORE, the Commission hereby approves the above referenced application with the following conditions:

1.  The applicant shall notify the conservation Agent at least 2 days prior to construction.

2.  The applicant shall notify the Conservation Agent upon completion to sign off on permit.

3.  Changes to the plan will require additional approval; a new plan will be submitted prior to construction.

4.  Additional work beyond the permitted activities will require approval from the Commission or its Agent.

5.  Submission of a planting plan be submitted by Creative Contours and approved by the Conservation

     Enforcement showing the use of non-invasive plants/plant species.

6.  The plants at waters’ edge will be mulched with non-dyed natural cedar mulch.

Mr. Bender seconded the motion.

Vote:  5 – 0 – 0.  Motion passed.

b.      2 Ferro Court – Pfanner.  Dredging of Pond.  Assessor’s Map 20.1, Lot 11.

Mr. Hafner said that they had just held this public hearing and closed it.

**MOTION (3)

Ms. Lozanov moved to accept the application as complete.

Mr. Reluga seconded the motion.

Ms. Lozanov asked about the planting plan indicating the type of ‘fir’ trees.

Mr. Hafner said that could be a condition of the approval.

Vote:  5 – 0 – 0.  Motion passed.

**MOTION (4)

Ms. Lozanov moved that WHEREAS, the East Lyme Inland Wetlands and Conservation Commission has considered all evidence submitted in support of the after the fact permit application that resulted from a Cease and Desist Order for dredging a pond without a permit at 2 Ferro Court as shown on plan entitled “Site Plan property of J. Robert Pfanner, 2 Ferro Court, East Lyme, CT, dated 2/25/08 as revised 4/2/08. (Assessor’s Map 20.1, Lot 11).

WHEREAS, the Commission finds that the applicant has successfully demonstrated the following:

a.  The applicant conducted regulated activities without a permit from the East Lyme Conservation Commission.

b.  The oxygen level in the pond prior to this work had dropped to a level that was too low to support a fish

     population.

c.  The proposed work will restore the health of the pond and provide a habitat that will once again support a fish

     population as ordered by the Cease and Desist Order.

THEREFORE, the Commission hereby approves the above referenced application with the following conditions:

1.  The restoration shall be performed in accordance with Exhibit 4 – the Evaluation of the Proposed Restoration

     of the Pond at 2 Ferro Court dated February 29, 2008.

2.  The restoration shall be monitored by a qualified professional (other than the applicant) for a minimum period of 3 years with annual reports submitted to the Commission or its Agent. Any corrective action recommended by the reports shall be performed in a timely manner. The reports shall include but not be limited to the health of the pond as it relates to the restoration of the aquatic habitat and the survival rate of the plantings. If the wetland functions of the pond have not been restored after 3 years, the annual monitoring and reports shall continue until such time as the pond has been restored to the satisfaction of the Commission or its Agent.

3.  The applicant shall notify the Conservation Agent at least 2 days prior to resuming construction to inspect the

     erosion controls.

4.  Changes to the plan will require additional approval; a new plan will be submitted prior to construction.

5.  Additional work beyond the permitted activities will require approval from the Commission or its agent.

6.  The completed planting plan with scientific names for those not already indicated will be submitted and

     approved by the Commission of its Agent.

7.  An ‘As-Built’ plan is to be submitted upon completion.

Mr. Bender seconded the motion.

Vote:  5 – 0 – 0.  Motion passed.

c.       165 Holmes Road – Orvedal.  Subdivision.  Assessor’s Map 57, Lots 11, 12 & 13.

      Date of Receipt: April 7, 2008.  Decision Deadline: June 11, 2008.

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

Matthew White, representing the applicant, Mr. Orvedal explained that this would be an 11-lot subdivision on a 37 acre parcel on Holmes Road. The property consists of three (3) existing lots that will become 11 after this. The central part is a high hill with wetland areas on either side. There is also a vernal pool and woods. The proposed lots will be served by an 18’ wide common driveway and the lots would own frontage on Holmes Road. Almost all of the run-off flows east to the wetland. The center of the property in the past has been used for ultra-light airplanes. They are proposing a berm and then retention basin areas with bio-filters for stormwater.

Ms. Lozanov asked if this would be set us as an Association.

Mr. White said yes, and that it would be an open-space subdivision with 50% open space and some conservation easements. The homes would be served by septic system and wells.

Mr. Bender asked the size of the lots.

Mr. White said that they would be an acre or a little more.

Mr. Hafner asked how long the common drive would be.

Mr. White said that it is about 1600’.

Mr. Reluga asked if the Conservation Easement meant that it would be area that is open to the public.

Mr. White said no – as a Homeowner’s Association, the area would be open to the Association homeowners and not to the general public. The conservation easements would be deeded with the individual lots.

Mr. Hafner asked if there would be any direct activity in the regulated areas.

Mr. White said no.

Mr. Prochorena said that this would not require a public hearing as their jurisdiction is for activity in the regulated areas and there is none being proposed with this application.

Ms. Lozanov said that she wanted a public hearing due to the area that this is located in.

Mr. Hafner proposed that they make a motion and vote that way on if they would hold a public hearing or not.

**MOTION (5)

Mr. Bender moved that they hold a public hearing on the application of Orvedal for 165 Holmes Road.

Ms. Lozanov seconded the motion.

Vote:  4 – 1 – 0.  Motion passed.

Against:  Mr. Prochorena

Mr. Hafner said that they would schedule this public hearing for their meeting of May 5, 2008.

7.       Old Business

a.  Upper Kensington Drive – Cease and Desist Order.

Mr. Hafner asked Mr. Hayden for an update on this.

Mr. Hayden said that the original Cease & Desist Order is dated 11/6/07 and that they were promised that they would have a plan for this meeting and he does not have one.

Mr. Prochorena asked the background of this Cease & Desist.

Mr. Hayden said that it was issued because the applicant made a 15’ to 18’ wide path through a wetland.

Mr. Hafner suggested that they press forward with the Attorney for action on this and that they make a motion to support that action.

**MOTION (6)

Mr. Bender moved that the Conservation Commission strongly urges the Selectmen to pursue legal action on the matter of the Cease & Desist for Upper Kensington Drive as there has been no cooperation from the party responsible for the action undertaken within the wetland area.

Ms. Lozanov seconded the motion.

Vote:  5 – 0 – 0.  Motion passed.

b.  Proposed Wetlands Ordinance – Fines for Wetlands Violations.

Mr. Hayden said that Mr. McKirdy had already updated them on this matter.

He said that he thought that there was some discussion regarding the $15 fine level and explained that it is more of a tool for a very minor violation and that it is a recommendation and the Board of Selectmen can suggest more of that is what they decide to do. They have $500 and $1000 fines for drastic situations and the $15 fine was meant to get people who really were not aware of what they were doing or that it was not allowed, to work with him on correcting the situation.

Mr. McKirdy suggested that it is important for someone from the Commission to be present at the Board of Selectmen meeting to explain the rationale so that the Board understands and can ask questions.

c.   2 Ferro Court – Pfanner – Cease and Desist Order.

**MOTION (7)

Ms. Lozanov moved that the Cease and Desist Order for 2 Ferro Court – Pfanner be removed.

Mr. Reluga seconded the motion.

Vote:  5 – 0 – 0.  Motion passed.

8.       New Business

There was none.

9.       Chairman’s Report

Mr. Hafner said that there was a meeting earlier this evening with Mr. Formica and the other land use staff and Chairs and that there was discussion on the Public Hearing procedures. Mr. Formica suggested that it would be better for all of them to be uniform in their manner of holding public hearings and the rules of the hearing. Some of the issues that were discussed involved having sign up lists for those wishing to speak and time limits and letting people know that they can submit written comments if they do not wish to speak. He asked that they give some thought to this and submit any ideas or suggestions that they might have to Mr. Hayden. He added that he personally would like to keep the ’informality’ that they have to some extent as it allows people to give and take in discussion.

Mr. Reluga said that they should not allow anyone to speak a second time unless everyone who wishes to speak has spoken first.

Mr. Hafner said that they have done this. He said that he wants people to speak ‘on point’ and not on anything that they might be upset about that has nothing to do with the application.

10.   Conservation Enforcement Officer Report

Mr. Hayden said that he had asked Human Resources about someone getting hurt on a site walk and what the Town’s limit of liability would be and that the insurance carrier had informed Human Resources that they are not liable as Commission members are not employees and are therefore not covered. He added that Human Resources is also checking into another avenue and that he would get back to them with that answer when he gets it.

Mr. Hayden reported that he had extended an inactive permit application for 138 Bridebrook Road with no changes and granted a permit modification for a slight relocation of a driveway for 124 Upper Pattagansett Road. He said that he also has DVD’s by the DEP on the Commissioner’s training program for anyone interested in them.

Mr. Reluga asked about the pending court case involving Mr. Mingo.

Mr. Hayden said that he has not heard anything on the status of it lately.

Mr. Reluga asked about Darrow Pond and the wetland situation from 2 to 3 years ago.

Mr. Hayden said that he is pursuing a report on the survival of it as it looks like it has been done and all that is needed is the report on the outcome.

Mr. Reluga asked Mr. Hayden to put this on their next site walk so that they can review it. He also asked about Jordan Cove and if it would be worthwhile for them to do a site walk to go see it.

Mr. Hayden said that he would speak with Bruce Morton on this and get back to them.

Mr. Hayden reported that the Hole in the Wall project will be underway shortly and that there are a lot of very interesting conservation measures being incorporated there.

11.   Adjournment

**MOTION (8)

Ms. Lozanov moved to adjourn this April 7, 2008 Regular Meeting of the East Lyme Conservation Commission at 9:09 PM.

Mr. Bender seconded the motion.

Vote:  5 – 0 – 0.  Motion passed.

Respectfully submitted,

Karen Zmitruk,

Recording Secretary, Pro-tem