Urgent Attention Needed from all Middlebury Residents

There is a special Conservation Commission Meeting scheduled for Monday, May 1st at 7pm at Shepardson Community Center for the Commission to deliberate on application #490 - 555 Christian Road/764 Southford Road. The draft resolution is provided below (This draft document is a starting point for discussion and the committee still needs to debate and vote)

Please note a few things:

• There is no mention of the Intervenor or the issues raised by the Intervention

• The draft resolution mentions only the positive aspects of the project and none of the negatives, so it appears the Commission has already made up its mind on the application

• It does not appear the meeting will be on Zoom, so plan to arrive early to get a seat

Follow This Blog

DONATE HERE

Breaking News: Middlebury Selectman Ralph Barra resigned yesterday.

 

Follow This Blog

DONATE HERE

i95 Rock gets it right!

Thank you, i95 Rock for this accurate account of the situation in Middlebury and interview of MSTA’s Jennifer Mahr. Middlebury is NOT divided over this proposed Distribution Facility!

https://i95rock.com/middlebury-is-not-divided-over-proposed-distribution-facilities/

Follow This Blog

DONATE HERE

April 18th Recap, Part 2

Questions. So many unanswered questions. At the April 19th Conservation Commission, Attorney Fitzpatrick told the Commission that the applicant had listened to all the concerns about the project, adjusted the proposed plans to respond to those concerns, and so the application should be approved. Sounds kind of like a participation trophy for showing up, doesn’t it?

Let’s talk about some of the questions that weren’t answered or completely addressed:

• Herpetologist Dennis Quinn said there wouldn’t be any off-site impacts to the Benson Woods vernal pools because the smaller building was moved further away from the property line. He also said the level spreader that would have brought water to these pools had been removed. So where will the water for these pools come from when the building process interrupts the ground water that should have ended up on the Benson Woods side of the property line? Dr. Danzer (Intervenor’s Soil Scientist) and Mr. Logan (Town’s Peer Reviewer) both agreed that the watershed for these pools came from the Timex side, and Mr. Logan suggested providing water to ensure the vernal pools weren’t dewatered (thus the reason for the level spreader in the first place). So how can the claim of no off-site impact be substantiated? The quip about Phase 2 Benson Woods construction being more impactful was just a smoke screen to avoid responsibility for the watershed disturbance and likely dewatering. Additionally, no one talked about Avalon Pond, ever, and the fact that Avalon Pond will take a direct hit if the proposed storm water management does not work as advertised.

• The summary table of Prudent and Feasible Alternatives (revised 4/18/23) left out some details: mainly, the acreage of disturbance in the 100’ upland review area. From the very beginning, SLR’s team has been very, very careful to mention only the DIRECT impact to wetlands, and to ignore the 7 acres, or 304,920 sq feet, of disturbance in the 100’ ft upland review area. See, when you focus on the 16,335 sq ft of DIRECT impact, and suggest that seems so insignificant to the 112 acre total lot size, it sounds like a nice story. But when you also have to account for the upland review area, well, that gets a lot trickier to justify. The Commission has jurisdiction over ALL of it (that’s why it’s called the 100’ upland review area), and that’s why the Commission can deny this application simply because of direct impact to 7.3 acres of wetlands AND the 100’ upland review area.

• Why aren’t the wetlands mitigation areas marked on the drawings for Alternate 1 and Alternate 2? The summary table claims there will be various amounts of mitigation based on a 2:1 ratio of direct wetlands impact (and again, nothing mentioned about the upland review area), but there is nothing marked on the submitted drawings. Did you know that according to the UMass-Amherst study submitted by Dr. Danzer, 12 of 91 projects evaluated “failed" because the mitigation wetlands were never built, despite being a required condition for project approval? If it’s not on the plans and the plans are approved, did the applicant just avoid having to build them?

• Speaking of Alternates 1 and 2, let’s review Section 10.3 of Middlebury’s Wetlands Regulations: “In the case of an application which received a public hearing pursuant to or a finding by the Agency that the proposed activity may have a significant impact on wetlands or watercourses, a permit shall not be issued unless the Agency finds on the basis of the record that a feasible and prudent alternative does not exist.” When the applicant submitted new plans on Tuesday, April 11th, the preferred design shrunk to 670,000 total sq ft because the smaller building got smaller to be nicer to the off-site Benson Woods vernal pools. But the larger building did not change in size, and the impact to ON SITE wetlands did not change. This new preferred design can’t be a feasible and prudent alternative to the original design because there is no lesser impact to on site wetlands. The attempt to measure only direct wetlands impact and not include the impact to the 100’ upland review is misleading and doesn’t tell the whole story: 720,000 total sq ft alternative plans have a much higher overall impact than the new preferred 640,000 total sq ft plan does, so they cannot be feasible and prudent alternatives.

• Onto the conservation easement. Let’s first point out that the residential portion of the property was not included in the original designs, meaning SLR only considered the portion of the property in the LI-200 zone as part of the project (and said so on the early plans.) It essentially ignored the residential piece, which was zoned that way to be a buffer between the Timex development and the surrounding residential zone. But as opposition to the project grew, that residential piece was first used as a threat (an affordable housing project and an additional residential development), and then offered as a sweet treat called a conservation easement. Except that there is no standardized beast called a conservation easement because the specific details have to be hashed out in a legal agreement specific to that property. So, without the exact details written down and signed by all parties, this is just a vague promise. It also DOES NOT CHANGE the fact that the proposed preferred design destroys wetlands and the developer did not even try to avoid this impact. Most absurdly, why would the town want to give up 35 taxable acres when the whole justification for this abomination..eh..project is to grow the Grand List?????

• Section 10.5 goes on to say: “A conclusion that a feasible and prudent alternative does not exist does not create a presumption that a permit should be issued. The applicant has the burden of demonstrating that his application is consistent with the purposes and policies of these regulations…” There’s the heart of it: the purposes of the regulations are “The preservation and protection of the wetlands and watercourses from random, unnecessary, undesirable and unregulated uses, disturbance or destruction…” All the time spent on "Wetlands Apartheid,” or Soil Scientist Matt Sanford’s repeated explanations that all wetlands are not created equal and therefore not equally worth preserving, proves the application is not consistent with the purposes of the regulations. The purpose is protection and preservation of ALL wetlands, not the justification of destruction. Furthermore, if an “artificially created by building construction” wetland has no value, why waste any time or money on artificial wetlands mitigation and call it “higher functioning wetlands”? If the emphasis on artificial creation is a negative quality in one case, it can’t at the same time have super extra positive value in another, nor can one use intent to distinguish value. No one intended to create wetlands during the Timex building construction, so what nature did since that time has no value. But, since SLR INTENDS to create wetlands to make the Commission feel better about obliterating wetlands, those artificial wetlands have value. Nonsense - all of it. The definition of value changed so many times in this explanation you should be dizzy.

Why doesn’t the Middlebury Land Trust want to hold the Conservation Easement for this property? According to Attorney Ainsworth, who is counsel to both the MLT and the Middlebury Small Town Alliance, there are four reasons why not:

1. The MLT is a non-profit conservation and open space organization that protects natural spaces

2. The MLT is opposed to facilitating the wholesale destruction of wetlands

3. The MLT believes the conservation easement is a fig leaf for development that is both environmentally irresponsible and detracts from the community character

4. Conservation easements are a responsibility that requires stewardship in perpetuity, not just ten years, and the developer has not offered to endow that long term commitment.

Middlebury residents are angry, disgusted, appalled, and horrified that anyone in town leadership would think that this project is suitable for our town. This belief is so pervasive that residents have shown up (and Zoomed) in droves over the course of six town meetings and funded opposition out of their own pockets. Parents are considering taking their children out of LMES for safety reasons, homeowners are considering moving to protect their current investment in their homes and to preserve a particular quality of life, and the collapse of home values near the project site would likely wipe out any eventual tax revenue. These are real consequences that would further damage Middlebury’s charm, not enhance it. There isn’t a single, defendable reason to approve this project, and there are many, many, many reasons to deny it, not least of which is the applicant’s own failure to submit a complete application.

Dear Conservation Commission Members: Just Vote No.

Follow This Blog

DONATE HERE

April 18th Recap, Part 1

In his closing comments last night, Attorney Fitzpatrick made a bold statement: “if you (the Commission) choose not to believe these experts, believe the independent expert you hired, who agrees with us.” Slam dunk, case closed? Absolutely the opposite, and a major logic derailment. But that’s the end, so let’s rewind to summarize from the beginning.

First, a huge THANK YOU to everyone who attended the meeting. The room was full, and camera crews from NBC and Channel 3 were present for the entire meeting. In the spirit of “fairness,” the Intervenor was asked to go first to respond to the revised plans submitted last week. Attorney Ainsworth summarized his final comments, Professional Engineer Steve Trinkhaus joined via Zoom and stood by all his comments and submitted reports, and then the public was asked to comment. This was the real shocker of the evening: no one was allowed to comment at the April 11th meeting, nor did the town notify anyone that public comment would be allowed during the April 18th meeting. Had anyone known the public could comment again, people would have been prepared to do so. Four brave souls jumped up to speak and then public comment was closed.

George Logan, the town’s peer reviewer, spent his time trashing the letter Steve Trinkhaus submitted on April 11th. He went on and on about how he went back to the manuals Mr. Trinkhaus cited in his literature review and then “read the next paragraph” that supposedly agreed with SLR. Mr. Logan claimed everything in Mr. Trinkhaus’ report was taken out of context and SLR was right and the Intervenor’s expert was wrong.

For the applicant, Attorney Fitzpatrick ran his entire team through the process, again. Key comments:

• Dennis Quinn, herpetologist: Federal wetland B is a not sensitive wetland and nothing is probably living there. Federal wetlands C is more sensitive. Vice Chair Mary Barton asked what the off-site impacts would be from this project, and Quinn replied none, because the 2nd building was moved further away from the Benson Woods vernal pool.

• John Milone, owner MMI, now part of SLR: The new plans submitted last evening only reflect questions raised by the Commission last week, mainly that the conservation easement could be extended along 188. No details provided on what the easement would actually entail. He pointed out the “conservation area” was now 35 acres, there would be no salt storage onsite and no vehicle refueling onsite. Vice Chair Mary Barton asked about a new EPA regulation requiring EV charging stations per number of parking spaces, and that will be looked into. Commissioner Peggy Gibbons asked point blank: “do you believe this project won’t disturb the natural environment?” and Milone replied that he didn’t think it would. (Cue illegal groans from the audience.)

• Matt Sanford, Soil Scientist: Re-explained the invasive species management plan, submitted new arial photos of historic land use on the site since the beginning of time, explained that all wetlands are not "created equal", noted that moving the buildings would not save the function of the artificially created wetlands slated for destruction, and touted the value of saving the wildlife corridor in the conservation area. When asked by Commissioner Tzeptos about the success rate for created wetlands, Sanford blamed failures on inadequate hydrology, lack of maintenance/monitoring, and using soils riddled with invasive species. Sanford pointed to the Killingworth Reservoir as a shining example of wetlands mitigation. Interestingly, that project was 6.5 contiguous acres, or 283,140 sq ft of created wetlands. Last week, the Intervenor submitted a study showing success rates on wetlands creation depends on size of the project (the larger the better) and climate (warmer is better, colder really struggles). Depending on which alternative is approved, the applicant is proposing to create only 32,740 sq ft, 3,000 sq ft, or 20,750 sq ft of “ higher functioning wetlands,” a tenth or less of the size of the successful example.

• Attorney Fitzpatrick: Closing summary claimed the applicant has more than met every requirement for the project, has an AWESOME engineering team that gave only straight forward facts and relied on established science with solid, verifiable - not arrogant - evidence for the wetlands they are disturbing. Fitzpatrick was unable to provide real details for the conservation easement because the Middlebury Land Trust won’t take the land, so the applicant will just give it to the town to do what it wants with the 35 acres. (So is there a conservation easement or not?).

And now we’re back to where we started: if the Commission doesn’t believe the amazing SLR team, it should believe the independent reviewer, George Logan, because he’s awesome too and he agrees with SLR.

But then, a little nugget of SLR wisdom floats down from meetings past. If you remember way back to January 31st, when Attorney Ainsworth mentioned that ribbon snakes might be present on the property, SLR Soil Scientist Matt Sanford lost his mind over the thought of ANYONE touching or even looking at a ribbon snake if they weren’t a herpetologist. Nor could anyone not a soil scientist have an opinion on what defines a wetland. And, remember that Attorney Fitzpatrick has, on numerous occasions, insisted that only science and the appropriate experts could determine the fate of this application? Well, let’s apply that logic to the town’s “independent peer reviewer,” Mr. Logan, who is a soil scientist. He is not a drainage engineer or Low Impact Development (LID) expert, so by SLR and Attorney Fitzpatrick’s logic, the peer reviewer’s comments, outside of wetlands delineation, CAN NOT BE a basis for the Commission’s decision. George Logan is only a soil scientist, and therefore not qualified to comment on matters of storm water management and water quality, let alone design an unheard of combination for the applicant.

So, when Attorney Fitzpatrick told the Commission NOT to believe the SLR team and to believe George Logan instead, that tells you everything you need to know about this application. Mr. Logan invented the drainage basin/bioretension system that SLR so eagerly accepted, but there’s no known use of that specific combination in the real world since no evidence of current use was submitted to the Commission and the public hearing is now closed. The ONLY Low Impact Development (LID) expert who testified before the Commission never changed his tune: the proposed storm water quality management system will not work the way SLR and Mr. Logan pretend it will, and the resulting lack of water quality will pollute downstream receptors.

Bottom line: this application is asking to fill wetlands - not restore or enhance existing wetlands - and it wants everyone to believe that the world would be a better place in the end. Timex already wrecked the property, so Drubner is justified to finish the job! Instead of heeding the legal mandate to avoid impact from the very beginning, this application justifies the worst impact by claiming the law doesn’t care about “less equal” wetlands, and neither should the Commission charged with protecting all wetlands.

Here’s the real truth: anyone concerned about legacy in Middlebury, either personal or the town’s, should read the writing on the wall. Approving this project will ruin decades of work spent preserving the semi-rural, small town we all cherish. There is no amount of grand list gain that could undo this damage, nor should Middlebury sell its soul to the first idea that walks through the door. Believe us when we say we don’t want this here: we’re not confused, we don’t appreciate being patronized, and we certainly have the right to decide as a town what’s good for us.

Just Vote No*.

* The Public Hearing is closed. The Commission has yet to set a date for its deliberation, but it has 35 days to make a decision. Stay tuned for Recap, Part 2.

Follow This Blog

DONATE HERE

It’s a busy week for the MSTA!

Please join us!

• Tuesday at the continued Conservation Commission Public Hearing, 7 PM at Shepardson Community Center - Zoom: https://us02web.zoom.us/j/83898001940?pwd=S1VPRWwzQTMyRjFZSjNJTzhUKzB3UT09

• Thursday for our Fundraiser at Pies and Pub (eat-in or takeout!) 4:30-9 PM

• Saturday at Meadowview Park from 10-12 PM for the Middlebury Park and Rec Earth Day Clean-up

Follow This Blog

DONATE HERE

Support the Middlebury Small Town Alliance with dinner at Pies & Pub (eat in or take out!) - Thursday 4/20 from 4:30-9

 

Follow This Blog

DONATE HERE

Groundhog Day in April

If you’ve ever wondered how Bill Murray felt in the 1993 movie, Groundhog Day, the mystery is over for those who sat through or zoomed last night’s Conservation Commission continued public hearing, which is continued again to April 18th at Shepardson Center at 7pm. In the spirit of fairness, Vice-chair Mary Barton continued the hearing because the applicant, the peer reviewer and the town’s consulting engineer managed to take up 2 1/2 hours of the “must-be-out-by-10-pm" allotted time. And, in full disclosure, the applicant, peer reviewer, and town engineer needed all that time to spin a doozy of a tale that only lacked a unicorn parading across the stage at the end.

In the movie, Bill Murray is a real jerk, and has to keep repeating February 2nd until he learns to be a better person. That’s where we lose this analogy, because no one deserves what this application has put us through. Yes, the applicant is afforded every opportunity to demonstrate the worthiness of an application, but we’re off in another realm now for sure. The only good news of the evening was that the applicant’s soil scientist was on vacation, so we didn’t have to suffer through that presentation again…until next week.

What did we learn, or better yet, what is today’s fresh outrage? 

• Debbie Seavey emailed a new set of plans from the applicant, dated 4/10/23, to the Intervenor’s attorney at 3:26pm on Tuesday, April 11, just 3.5 hours before the hearing started at 7pm. At 3:32pm, she emailed the town engineer’s comments, dated 4/10, that responded to Steve Trinkhaus’ March 28th supplemental report. Nothing like timely disclosure.
• The new plans include putting the residential portion of the property into a conservation easement, provided the applicant gets to build the big building it wants. No details on who would hold the easement or what kind of easement it would be.
• Reduced sq footage is now proposed for the smaller building, with less impact to the off-site vernal pools on the Benson Woods property.
• A new lighting plan was included that supposedly demonstrates no light is leaving the project area. Once all the buffer trees are planted, which also will magically suck up all the air pollution, there will be no light pollution or air pollution either. So acres of lights will be on, but you won’t see them, allegedly.
• According to John Milone, the President of MMI (which was acquired by SLR and operates under that new name) this facility isn’t necessarily a distribution center, and people should stop calling it that. Not sure why it would need loading bays or truck trailer storage if it isn’t a distribution center, but each design rejected as not feasible was rejected in part because there wasn’t enough tractor trailer storage or the building wasn’t big enough for the client’s purposes. Hmmm…if it looks like a butterfly, and flies like a butterfly…it’s probably a bog turtle.
• According to Attorney Fitzpatrick, the property is in the LI-200 zone, which is an industrial zone and exactly suits this project.
• One of the alternative proposals suggested by the Intervenor’s engineer, Steve Trinkhuas, isn’t an alternative because one corner of the building would stick into the residential zone and that’s not a permitted use, so it’s not an alternative. Apparently an entire building in the LI-200 zone that isn’t a permitted use is not a problem, though. 
• Dennis Quinn, the herpetologist hired to do habitat assessment, really didn’t like people criticizing his work. He also thinks wetlands creation is a waste of time and the creatures living on the Timex site aren’t worth protecting. He didn’t actually check for creatures, because his employer didn’t want that, but if he did, he can promise there aren’t any worth saving. Bog turtles do not like Middlebury, by the way, and Quinn’s entire presentation was designed to convince the Commission a full biological assessment on the property isn’t necessary because no worthy creatures could possibly live on such a degraded site.
• Peer Reviewer George Logan didn’t wait for the applicant to respond to the intervenor’s concerns, he decided to tackle those for the applicant. The town being “neutral” on this application actually means Soil Scientist George Logan is tasked with inventing a storm water management plan for the applicant and then defending that design to the death, with the town’s consulting engineer providing back up. Both spent an enormous amount of time attacking Steve Trinkhaus’ intelligence and credentials. Don’t bother calling this a peer or independent review anymore: Mr. Logan stopped being an independent reviewer the moment he dreamed up a water quality treatment for the applicant. SLR happily accepted Logan’s suggestions, so all must now help each other perpetuate the myth. Attacking Steve Trinkhaus is all they have because they can’t actually defend their design.
• There are plenty of places to store snow according to SLR’s engineer, but there’s no actual plan that demonstrates the snow melt is captured adequately by the storm water treatment system and treated effectively before it is released into downstream receptors (Avalon Pond being first in line).
• The Peer Reviewer acknowledged that wetlands creation has a terrible success rate, but hey - it’s worth a try anyway because we shouldn’t give up on the environment over here while we’re wrecking it over there.
• In the applicant’s first several plans, the presence of invasive species was a reason to condemn wetlands to death. Now, all invasive plants property wide will be attacked vigorously, except that you can’t pull invasives in a wetland because that would disturb the wetland too much, so you have to cut the bad plants out by hand and then apply an herbicide to kill it. And that doesn’t normally work the first time, so you have to keep applying herbicide. Also, flattening an entire hill, filling in wetlands and disturbing another 7 acres of upland review area does not disturb wetlands too much because said wetlands are isolated, full of invasives, and only technically wetlands because the soil type meets the CT definition of a wetland. And besides, there are only 111.9 acres to work with on this property, so there is clearly no way to avoid filling in 0.3 acres of wetlands.
• The Commissioners finally started asking the applicant’s team and peer reviewer questions.

The hearing is continued to Tuesday, April 18th at 7pm at Shepardson Community Center. It appears that public comment time is over, so if you would like to provide input to the Commission, please do so via email to dseavey@middlebury-ct.org by April 17th.

Follow This Blog

DONATE HERE

Conservation Commission Decision Criteria

It became clear at the March 28th Public Hearing that there are a variety of opinions on what the Conservation Commission can or can't consider in making its decision on Application #490 - 555 Christian Rd/764 Southford Park. Let's look at Middlebury's Inland Wetlands & Watercourses Regulations, Section 10, for the final answer (full regulations are here):

SECTION 10 CONSIDERATIONS FOR DECISION

10.1 The Agency may consider the following in making its decision on an application:

a. The application and its supporting documentation; 

b. Public comments, evidence and testimony;

c. Reports from other agencies and commissions including but not limited to the Town of Middlebury:

1. Conservation Commission;

2. Planning, Zoning or Planning and Zoning Commissions;

3. Building Official;

4. Health Officer.

d. The Agency may also consider comments on any application from the Natural Resource Conservation Service (NRCS),  the Greater Regional Planning Agency, or other regional organizations (i.e. Council of Elected Officials); agencies in adjacent municipalities which may be affected by the proposed activity, or other technical agencies or organizations which may undertake additional studies or investigations.

e. Non-receipt of comments from agencies and commissions listed in 10.1c and d above within the prescribed time shall neither delay or prejudice the decision of the Agency.

10.2 Criteria for Decision.

In carrying out the purposes and policies of Sections 22a-36 through 22a-45, inclusive, of the Connecticut General Statutes, including matters relating to regulating, licensing and enforcing of the provisions thereof, the Agency shall take into consideration all relevant facts and circumstances, including but not limited to:

a. The environmental impact of the proposed regulated activity on wetlands and watercourses;

b. The applicant's purpose for, and any feasible and prudent alternatives to, the proposed regulated activity which alternatives would cause less or no environmental impact to wetlands or watercourses,

c. The relationship between the short term and long term impacts of the proposed regulated activity on wetlands or watercourses and the maintenance and enhancement of long term productivity of such wetlands or watercourses;

d. Irreversible and irretrievable loss of wetland or watercourse resources which would be caused by the proposed regulated activity, including the extent to which such activity would foreclose a future ability to protect, enhance or restore such resources, and any mitigation measures which may be considered as a condition of issuing a permit for such activity including, but not limited to, measures to (1) prevent or minimize pollution or other environmental damage, (2) maintain or enhance existing environmental quality, or (3) in the following order of priority: restore, enhance and create productive wetland or watercourse resources;

e. The character and degree or injury to, or interference with, safety, health or the reasonable use of property which is caused or threatened by the proposed regulated activity; and

f. Impacts of the proposed regulated activity on wetlands or watercourses outside the area for which the activity is proposed and future activities associated with or reasonably related to, the proposed regulated activity which are made inevitable by the proposed regulated activity and which may have an impact on wetlands and watercourses.

g. Wetlands or watercourses includes aquatic, plant or animal life and habitats in wetlands or watercourses, and habitats means areas or environments in which an organism or biological population normally lives or occurs.

10.3 In the case of an application which received a public hearing pursuant to or a finding by the Agency that the proposed activity may have a significant impact on wetlands or watercourses, a permit shall not be issued unless the Agency finds on the basis of the record that a feasible and prudent alternative does not exist. In making this finding the Agency shall consider the facts and circumstances set forth in subsection 10.2 of this Section. The finding and the reasons therefore shall be stated on the record in writing.

10.4 In the case of an application which is denied on the basis of a finding that there may be feasible and prudent alternatives to the proposed regulated activity which have less adverse impact on wetlands or watercourses, the Agency shall propose on the record in writing the types of alternatives which the applicant may investigate provided this subsection shall not be construed to shift the burden from the applicant to prove that he is entitled to the permit or to present alternatives to the proposed regulated activity.

There are 3 key ideas enshrined in the regulations (bolded for your convenience) that the applicant has spent a lot of time trying to downplay or outright convince the Commission to ignore:

1. From Section 10.2.a: Impact is defined by what the proposed regulated activity does to a properly identified wetlands or watercourse. Period. It doesn't matter how small or large the lot size is, what the ratio of wetlands to the overall property size is, how or when the wetland or watercourse was created, or who was responsible at the time. In Connecticut, "science" defines what is or isn't a wetland based on soil type and then policy takes over and defines what can or can't happen to the wetland or in the regulated area. If one owner's poor development choices degraded wetland resources, the following owner doesn't have an automatic right to continue the abuse. Plus, the Town has an obligation to intervene to prevent further loss when it is confronted with evidence of non-permitted activity in a regulated zone (Timex mowing wetlands). SLR claims the Timex development created new wetlands, but poor quality ones because Timex keeps mowing them, so they should be destroyed. Allowing destruction of these poor wetlands closes a future opportunity to enhance or restore them, and violates the mandate in the regulations. SLR's logic also sets up a never ending train of mandate violations: if the proposed SLR replacement wetlands fail to thrive, can a subsequent owner fill those in because they are not top tier wetlands? What if this proposed development completely alters the hydrology of the site and creates all kinds of new wetlands in places they didn't previously exist - can those be destroyed in the future too because they don't exist right now? No, and this is exactly why impact is defined by the presence of wetlands and what will happen to them during the proposed activity.

2. From Section 10.2.d: There is a difference between a developer's design decisions that impact wetlands and the 100' upland review area, and then the Commission's decision criteria for allowing that impact to those wetlands and upland review area. They are not interchangeable. When the Commission considers a permit application, the developer is first obligated to prevent, meaning to avoid activity where there are wetlands specifically and within the 100' upland review area more generally. Second, if activity in the regulated area can't be avoided, the developer's next priority is to maintain or enhance what exists. If there is a "irreversible and irretrievable loss of wetland or watercourse resources which would be caused by the proposed regulated activity," there is an order of priority that must be followed: restore, then enhance and then create productive wetland or watercourse resources. This is not the dollar menu at McDonalds, and an applicant can't choose an option based on preference. You can't say "the client prefers a 720,000 sq ft building, needs to fill in wetlands to get that building, and is jumping straight to making new wetlands in compensation." The obligation is to avoid, and to develop property based on the property's carrying capacity for development, not the applicant's preference for the largest building possible to maximize his bottom line. Only if there is no way to avoid irreversible loss can mitigation or creation be considered, and even then, the applicant has no right-of-use guaranteeing permit approval. And importantly, lot size does play a role here, because a smaller property increases the relative impact of the 100' regulated area to the owner's development choices. A larger property has a much greater capacity to avoid the wetlands in the first place.

3.  From Section 10.2.f: The Commission can consider impacts to wetlands/watercourses outside the regulated area that are caused by the proposed activity: this is why the proposed storm water management system and resulting water quality matters. The burden of proof is on the applicant to show that the activity on site will not pollute down stream receptors (Avalon Farms Pond and Kissawaug Swamp) and neighboring properties (vernal pools/wetlands at Benson Woods). It's the Town's absolute responsibility to ensure the design the applicant proposed complies with the strictest pollution guidelines available (Section 17.1: If there is a conflict among the provisions of these regulations, the provision which imposes the most stringent standards for the use of wetlands and watercourses shall govern.) It is not the Town's job to help the applicant design a system that the town can live with: the design either complies with state regulations or it doesn't. There is no in-between option that is good enough.

So what can the public say during the public hearing on Tuesday, April 4th at 7pm in the Pomperaug High School auditorium that the Commission is obligated to consider when it deliberates? Here are some examples (including but not limited to):

• Timex is responsible for the existing quality of the wetlands on its property. Any action it has taken to degrade these wetlands causes a follow-on obligation for a new owner to restore and enhance, not to destroy. If Timex has allowed invasive species to take over, the new owner can enhance the quality of the existing wetlands by removing the invasives. The presence of invasive plants or creatures is not authorization to condemn the wetlands to extinction.
• The applicant's own testimony, confirmed by the Peer Reviewer, proves the site's soil type is sensitive to development that alters the hydrology on the property, and this in turn affects onsite and neighboring wetlands. If the existing 45,000 sq ft building footprint interrupted groundwater and created new wetlands, it's not hard to imagine or predict what a building 16 times that size will do to the existing site hydrology, wetlands, and neighboring wetlands. The Commission is specifically obligated to consider this long term effect as a result of the proposed activity (Section 10.2.c).
•  A recent (2018) study in Massachusetts found that of 92 wetlands mitigation projects studied, only 55% of the area in the mitigation projects could be characterized as wetlands and 34.6% of the mitigation projects met all regulatory requirements. This suggests that wetlands mitigation is a vastly less effective strategy than avoidance of wetlands impacts through project reduction or modification. Therefore, jumping straight to wetlands creation to justify wetlands destruction is not a "net zero impact," and adding twice as many poorly functioning wetlands does not fulfill the restore and enhance mandate. (This study was submitted by the Intervenor and commented on by Dr. Stephen Danzer in his supplemental report dated March 27, 2023)
• There is a vast difference of opinion and experience between the Applicant's engineer and the Intervenor's engineer. The Commission can choose which set of experts to believe, but it has asked no questions nor has it challenged anyone's expertise on the record. The Peer Reviewer is a soil scientist and was hired by the Commission to ensure the Applicant properly flagged existing wetlands boundaries. If the Commission wants to challenge the Intervenor's expert engineering and water quality witness, it needs to hire a similarly qualified expert to do so.
• Impact to wetlands and regulated activity is defined in Middlebury's regulations in Section 2 - Definitions. A percentage calculation of wetlands acreage to overall lot size to determine impact is not part of either definition. Neither is there a "zero-sum" wetlands impact calculation to compel application approval.
• The applicant is not entitled to claim "preferred building size" as justification for wetlands destruction.
• The Applicant waves a "wildlife corridor" as justification for ignoring the mandate to propose a lesser or no-impact-to-wetlands development. But then, when required to propose feasible and prudent alternatives to destroying wetlands, the Applicant added additional residential development and increased the overall impact to the site. The threat of an affordable housing project is blatantly hostile, offensive, and still ignores the mandate to provide alternative proposals that do not impact wetlands.
• More than 540 people signed a Change.org petition to ask the Commission to require a full biological assessment of the property given the assertion that Ribbon Snakes, a CT Species of Concern,  may be present on the property. The Applicant did not give the Intervenor permission to conduct this assessment, but then hired the same herpetologist the Intervenor would have used to do a Ribbon Snake habitat assessment (not the same thing as a biological assessment). It turns out there are several areas suitable for Ribbon Snakes on the Timex property, but then the herpetologist argued that Ribbon Snakes haven't been found in Middlebury, so the curb design at Benson Woods is more of a threat to amphibians instead. The one has nothing to do with the other: the applicant still hasn't gone looking for Ribbon Snakes, so it can't say there aren't any. 
• Section 10.2.g extends the mandate in Section 10.2.f to consider impact to wetlands outside the regulated area to aquatic, plant and animal life and habitats, so the impact of light, noise, and air pollution on these entities is a legitimate concern of the Commission, and not a can to kick over the Planning and Zoning Commission.
• Procedurally, the applicant has taken every opportunity to grandstand and repeat presentations for the purpose of denying the public an equal opportunity to participate in the process. The Commission did not ask for additional clarification on the application, and the applicant isn't limiting comment to issues raised by the Intervenor. The Commission then limited the public to only 3 minutes of comment per individual - a legal but heavy handed approach given the wide latitude the applicant has had to say the same thing in 3 different meetings.
• Timex is clearly engaging in unpermitted activity in a regulated wetlands zone (mowing of the newly discovered wetlands). This is a violation of Middlebury's regulations and it should be investigated by the Town's Wetlands Officer, Debbie Seavey.