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.
* 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.
