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.
