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.
