An alarming item on Tuesday's Conservation Commission Agenda

An alarming item is listed on Tuesday's Conservation Commission Agenda, a permit modification for the Southford Park Distribution Facility and we have questions.

• Why does the wetlands permit need to be modified?
• Who is asking for the modification?
• When will the public be able to inspect and comment on the proposed changes?
• Will the changes need to be verified by any outside experts?
• Will there be a public hearing or do we need to start a petition calling for one?

Surely the Commission won’t accept changes and approve them the same night...

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Important Meetings: 10/31 - 11/2

🔺Important🔺

Planning and Zoning Meeting

Thursday, 11/2, at 7 PM, Shepardson Auditorium

The 3 public hearings related to the Southford Park distribution facility/flex-space continue next Thursday. All concerns regarding this project are fair game for P&Z to consider: traffic, noise, quality of life issues, pollution, impact to surrounding property values, safety to residents and our children, and so on!

Over the last few meetings, the chairman has read the names of those who have sent in letters opposing or supporting the project, so if you can’t make the meeting or are uncomfortable speaking publicly, please consider sending in your thoughts and making your voice heard! Written comments can be emailed to pandz@middlebury-ct.org

🚨Other important meetings next week🚨

‼️10/31 7:30 PM at Shepdardson: Conservation Commission Meeting. On the agenda is the Metro Realty Rental project.

‼️11/1 at 6:30 PM at 61 Echo Lake Road, Watertown: Watertown’s Planning and Zoning Public Hearing on Planned Development District off Bunker Hill Rd and New Wood Rd (behind the car dealerships and across from Stop & Shop) for 767,500 SF of distribution centers and a multi-family housing project.

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! IMPORTANT ! - Planning and Zoning Meeting / Public Hearings (Thursday, 10/5, at 7 PM, Shepardson Auditorium)

! IMPORTANT !

Planning and Zoning Meeting

Thursday, 10/5, at 7 PM, Shepardson Auditorium

🔺Wear Red🔺

Thursday night’s Planning and Zoning meeting at 7pm in the Shepardson Center auditorium will be quite the meeting. In addition to the public hearings for the three Southford Park, LLC applications, there are two other public hearings for subdivisions off Washington Drive and Nick Road, plus several new applications for other subdivision modifications, a Zone Text Change to add Section 28 Planned Rental Housing Development Overlay District, and a Zone Map Change to change LI-80/R-40/PRD to Section 28 Planned Rental Housing Development Overlay District. The meeting will be available via Zoom from the agenda posted on the town website: https://www.middlebury-ct.org/.../10052023_agenda_pz.pdf

Metro Realty has been before P&Z a number of times this year, seeking guidance on a proposed luxury rental project on the roughly 77 acres off Straits Turnpike just south of the existing medical building. The project is intended to appeal to those who specifically want to rent: single or married-without-children career-oriented professionals or empty nesters who don’t want to own a home anymore but who also want to stay in Middlebury. The project proposes 200 units, 1 or 2-bedroom only, with a projected total of 17 new children added to the Region 15 school district and a potential net tax benefit to the town of Middlebury of more than $500,000 (estimated property taxes and car taxes). The text amendment to create a new Planned Rental Housing Development Overlay District and the zone map change appears to be how Metro Realty hopes to proceed with the project. Additional details will be made available at the meeting.

Southford Park, LLC submitted an architectural review to the Economic Development Commission (EDC) on Monday evening (October 2nd), with tough questions from EDC members and public comment focused on the unknown use of the building. The architect commented that “there is a lot of baggage associated with the term warehouse or distribution facility, so that is why we have used industrial flex space terminology,” with a follow-up comment from SLR that “distribution facilities would not be a permitted use.” Attorney Fitzpatrick also commented that this would not be a trucking terminal because that’s not allowed in Middlebury, but then also insisted that the “warehousing” listed as a permitted use in Section 42 had nothing to do with the definition of a warehouse listed in Section 9 Definitions. The Economic Development Commission asked for additional renderings from all sides of the project, to see the written statement of compliance with the zoning regulations, and commented that it has never been asked to consider a project where the use of the building was unknown. Members of the public commented on all kinds of issues: 

🔺While the traffic study claims trucks won’t be able to turn left onto Southford Rd, there will be no physical barrier that enforces this pronouncement

🔺If the exterior of the building is metal, that surface will bounce truck sound right at the new homes that are supposed to be built on the east side of N. Benson Rd

🔺If the building is going to have solar panels on it, those should have been included in the renderings

🔺The renderings should have been done in winter and from all perspectives, not just Southford Rd in the summer, so an accurate view of the building is perceived

🔺How loud are the HVAC units going to be on the roof and will they be seen?

Many of the questions asked on Monday night were deflected by the applicant's representatives as relevant for the Planning and Zoning Commission and not the EDC, though Attorney Fitzpatrick took all kinds of notes and will likely have responses once the project is presented to P&Z. Members of the public will be able to comment on all three Southford Park applications, though it’s not clear how much time the public will have to comment on Thursday night given the very full agenda and the many applicants who will likely speak first. Written comments can be emailed to pandz@middlebury-ct.org if you want to be sure to get your comments in the record. If you plan to speak during the public hearing, it’s very helpful to hand in a copy of your remarks afterwards. All concerns regarding this project are fair game for P&Z to consider: traffic, noise, quality of life issues, pollution, impact to surrounding property values, whether or not this project aligns with Middlebury’s Plan of Conservation and Development (POCD), concern for students attending LMES and PHS, concern over Middlebury accepting a heavily compromised Conservation Easement, whether or not our Fire/Police Departments have the proper resources to handle this kind of development, and so on!

See you Thursday at 7pm!

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Important! - Thursday Night's P&Z Meeting Recap

At Thursday’s P&Z meeting, the Middlebury Small Town Alliance withdrew its application for a one-year moratorium on distribution facilities of any size and warehouses greater than 100,000 SF. There were two main factors driving this decision: first, the site plan application submitted for 764 Southford Road on August 29th would not be subject to a moratorium, so the rush to get a site plan in to beat the moratorium deprives us of the benefits of a moratorium. Second, the reports presented by the Town’s Attorney and consultant Town Planner raised serious concerns about the how the moratorium, if approved, would be implemented:

• The Town Attorney confirmed that “the Commission is in the process of updating the current regulations and public input would be timely.” If this process has already started, when was the public going to know about it? Who is doing the updating and where is this discussion taking place? There have been no P&Z workshops with the discussion happening in the public eye, so how could regulations be updated without the P&Z Commission first asking how the regulations should be updated?

• The Town’s consulting Town Planner, Hiram Peck, concluded his report on the moratorium with the following: “The planning study should be a transparent process. However, the cost of the process needs to be established and funded very early for the process to be successful. The party/parties who expect to participate in the process need to fund the effort.” So the MSTA asks for a moratorium (a “planning pause” to use Mr. Peck’s words) so the commission has time to thoughtfully consider and tighten the regulations to make it clear that distribution centers are not welcome in Middlebury, the town is required to have public participation in the process, but the MSTA has to pay for the Commission to do its job? That’s a legitimate function of government that cannot be passed off to private parties.

P&Z Chairman Terry Smith’s comments after the withdrawal fully cemented the decision. He stated he was in favor of the moratorium because even though it wouldn’t have applied to the new application on Southford Road, there are other properties in town where the public’s input would be necessary moving forward, and he wanted to work with the MSTA as part of that process. Here’s the problem with that statement: Chairman Smith didn’t say he wanted to have a honest and transparent discussion about whether or not distribution facilities belong in Middlebury, he said he wants to work on what those sites look like, which means he has already decided the use that currently isn’t authorized in our regulations is going to be allowed. First Selectman Ed St. John has mirrored this thinking from the beginning. He has repeatedly asked the MSTA for our list of concerns so the developer can address them, which deliberately misses the point. The conversation this town wants to have is about whether or not this kind of development even belongs in Middlebury, not what kind of trees should be planted to block the view once this project is built. We don’t want to talk about site plan parameters because there shouldn’t be a site plan option for this kind of development.

• What can we do? We’ll be petitioning under Conn.Gen.Stat. §8-3(b) to force the Planning and Zoning Commission to a super-majority vote on the zone change application to raise the height from 35’ to 44’ in the LI-200 zone. Any abutting property owner within 500’ of the LI-200 zone can sign the petition, and we need 20% of the lots within five hundred feet in all directions of the LI-220 zone. Once we gather these signatures, instead of a simply majority to approve the proposed height change, the P&Z Commission will need a 2/3 vote to approve.

• Second, we can oppose the town accepting the proposed conservation easement for the 35 acre Lot B. The former Timex property was recently split into two lots to help the developer avoid the provisions in the state budget implementor bill. Specifically, the new property lines were drawn to exclude wetlands from the parcel the distribution center would be built on so that there are now less than 5 acres of wetlands and the state provision no longer applies. The fancy PR site for Southford Park calls this “reimagining 77 acres in Middlebury,” and claims this is "groundbreaking industrial flex space dedicated to merging economic growth and environmental stewardship in Middlebury, Connecticut.” So, if the town accepts this easement, it will be condoning the developer’s side-stepping of the protective intent of state law and forfeiting real estate taxes on 35 acres to ease the developer’s tax burden at the expense of Middlebury residents. While one can argue that this “reimagining” was legal, one can’t argue with the fact that “industrial flex space” is not a defined or authorized use in Middlebury’s Zoning Regulations.

The next tune you will hear from town officials will be familiar: "if an application meets all the requirements in our regulations, we can’t deny it or we’ll get sued." Funny thing is, Middlebury’s regulations seem to be flexible enough to allow whatever interpretation is necessary to approve just about anything these days (except, of course, drive-thru coffee shops).

Link to Hiram Peck's Planning Consultant Report on the Moratorium

Link to Dana D'Angelo's Legal Opinion

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Moratorium Public Hearing - Thank you, Middlebury!!!

Thank you to all of you who wrote letters, joined us in person and on Zoom, and who spoke out in support of the moratorium at last night’s public hearing. The public hearing has been continued to September 7th at 7 PM.

September 7th now has two important public hearings scheduled, please join us again:

• September 7th, 7 PM: Public hearing on the MSTA’s moratorium application…continued
• September 7th, 7 PM: Public hearing on the text amendment to raise the allowed height

Link to Presentation

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Check your mail!

Check your mail, spread the word, and join us at the upcoming public hearings!

Oh, and some signs have been disappearing, so make sure that yours is 10 feet from the road on your private property.

If you are new to the MSTA, Welcome! Here is what you need to know aside from the articles, below.

Frequently Asked Questions Link:

Middlebury Small Town Alliance: FAQ

Stay informed and Support the Alliance!

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We oppose the proposed Zoning Regulations text amendments to allow Distribution Facilities as a permitted use in the LI-200 zone.

We oppose the destruction of wetlands for heavy industrial use.

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If you would like to support our Alliance with your time and effort, please fill out your Name, Email, and a short description of how you would like to get involved in the comment block below.

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Agenda for Thursday's P&Z meeting (July 6th at 7pm)

Please note there is a new text amendment for height in the LI-80 zone.

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Happy Fourth of July, Middlebury!

Just a quick reminder to mark your calendars for a few upcoming important events

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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/

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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.

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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.

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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

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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.

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Bull in a china shop...

Bull in a china shop. That's the best way to describe the proposed re-development of the Timex Property. No offense to the bull - he's entitled to be himself - but not in a china shop. This project should be confined to an area that can handle its destructive power (no wetlands destroyed & no sensitive environmental receptors on all sides), and that's not in Middlebury.

Help us close the door on the bull...

We raised $4868 of our $10,000 goal for March. We're thankful for that support and have put it to good use. The fight's not over, so the fundraising isn't over yet either. Any amount is a valuable contribution to the cause - we appreciate all of it!

Checks can be sent to Middlebury Small Town Alliance, PO Box 1073, Middlebury, CT, 06762

Our GoFundMe site: https://www.gofundme.com/f/middlebury-small-town-alliance

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The Non-Public Hearing

If you missed Tuesday night’s Conservation Commission public hearing, you missed a grand show. Granted, the seats were more comfortable and the sound was definitely better, but several people got shut out of the Zoom broadcast (again, limited to 100 participants) and the public got shut out of its own public hearing. Vice Chair Mary Barton asked the applicant, peer reviewer & town engineer, and intervenor to all be finished speaking by 8:30pm to allow the public an hour of time to talk before everyone was supposed to be out of the auditorium at 9:30pm. At 8:30pm, the applicant was still shuffling speakers through a complete re-presentation of the entire application (with cute butterfly pictures for emphasis), and the peer reviewer & town engineer hadn’t even started their suddenly lengthy comments. The intervenor’s attorney and only one of its experts spoke briefly for 15 minutes to rebut the still-not-in-compliance-with-DEP-regs stormwater management plan, and then stepped aside to let the public speak. In total, the public got only about 35 minutes of time to speak, so the hearing was recessed until April 4th at 7pm at PHS.

Key takeaways from the evening:

• The applicant’s soil scientist spent an extraordinary amount of time degrading the quality of the wetlands on the property as not being worthy of their title, trying to imply that Middlebury’s wetlands regulations only apply to higher class wetlands.

• The applicant refused site access to the MSTA’s herpetologist, but then turned around and hired him to assess ribbon snake habitat on the property he was formally denied access to. Shockingly (not really), there is suitable habitat for ribbon snakes on the Timex property, but since the applicant only asked for snake assessment, the herpetologist ignored all the other creatures that might live in all the “Federal” wetlands on the property. He didn’t ignore the vernal pools over on the Benson Woods (BW) side, however, and spent all of his time shaming any future development at BW for harming wood frogs and salamanders. Don’t get confused: this was not a full biological assessment, it was simply a habitat assessment, and the attempted “look over at them and not at what we’re doing” didn’t fool anyone in the audience. We also noticed that no 700 ft impact boundary was drawn around the Timex vernal pool the peer reviewer mentioned.

• The peer reviewer originally identified the potential vernal pools at BW, noting that the water for these pools came from the Timex property. This was confirmed by the MSTA’s soil scientist, with the comment that the watershed on the Timex property was likely larger than what it was being credited as. The applicant’s engineer jumped all over this in February, offering to provide water from the site to these potential pools so development didn’t de-water them. Now that we know those are high quality vernal pools (thank you, herpetologist), the herpetologist then recommended removing the level spreader that would have provided water to the pools. Good thing, too, because the real water quality calculations show contaminates are not being removed at the levels required by the state. But we’re still left with the Timex re-development dewatering the very excellent vernal pools at BW.

• The applicant’s engineer, the peer reviewer (a soil scientist, not an engineer), and the town’s consulting engineer all suffer from the same disease: that storm water management design is like Legos...everyone can be a master builder using any random blocks they like. How any of them could say with a straight face that the plan NOW complies with CT DEP regulations is laughable: it was supposed to comply from the very beginning, they’re on like revision #4 or #5, and it still doesn’t comply because they’re mixing and matching pieces that don’t go together. The town’s consulting engineer was fine with the first plan...no wait, now the second one is also fine…OK, the third is fine…and the 4th is also good. Which is it? And why should we believe any of it if the application didn’t comply from the very start? If you think too hard about this, you’ll realize that if the MSTA hadn’t hired the area’s leading storm water management and water quality expert, the applicant would have gotten away with building a system that utterly failed to comply with state regulations and just passed pollution untreated downstream to Avalon Farms, Benson Woods, and Kissawaug Swamp.

• The most astonishing part of the applicant’s presentation was the approximately 7 minute discussion of feasible and prudent alternatives. By this time, the audience was in a foul mood, and the presenter rushed through his part of the filibuster. Mind you, the whole purpose of the public hearing was because the Conservation Commission determined this project would have “significant impact” on wetlands, and the applicant was therefore obligated to provide feasible and prudent alternatives that wouldn’t harm wetlands. We got almost 2 hours of re-presentation of the original proposal that triggered this finding, and about a sneeze’s worth of possible alternatives. What we did hear and see was a very narrow interpretation of wetlands impact, meaning just the actual wetland boundaries were considered when moving buildings around to avoid impact, and not the more than 300,000 sq ft of upland review area that is also regulated. And now we know, thank you herpetologist, that the 100’ upland review area should really be more like 700’-3000’ feet because frogs can hop, so building right up to the very edge of the actual wetlands defies the concept of no impact (sort of like your kids not actually touching each other in the back seat).

• Finally, the applicant now threatens an affordable housing development on the residential portion of the Timex property if he can’t destroy wetlands to build his 720,000 sq ft building. This threat actually insults anyone who might need affordable housing: if the existing neighboring residential properties don’t want to live next to a distribution facility, why would we ask anyone needing affordable housing to live even closer? Is the implication that, like the “isolated state" wetlands, someone with a lesser income is less valuable?

The public hearing was recessed until Tuesday, April 4th at 7pm. This means the public should finally get time to speak, and you won’t have to sit through presentations first. There is plenty to complain about this application, and we’re looking forward to the opportunity to complain loudly. Please join us.

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