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July 22, 2008 Minutes

Public Hearing #1533
July 22, 2008

***** Draft Document - Subject to Commission Approval *****

The Meeting was called to order by Chairman Ouellette at 7:07 P. M. in the Town Hall Meeting Room, 11 Rye Street, Broad Brook, CT.


A quorum was established as four Regular Members (Devanney, Farmer, and Ouellette) and two Alternate Members (Matthews and Thurz) were present.  Regular Member Gowdy and Alternate Member Tyler were absent.  The Commission currently carries one vacancy for a Regular Member.  Chairman Ouellette noted Alternate Commissioners Matthews and Thurz would sit in on decisions/votes this evening.  Also present was Town Planner Whitten.


BUSINESS MEETING/(1)  Update of Flood Plain Regulations:

Town Planner Whitten presented the Commission with a revised draft of the proposed Flood Plain Regulations, noting that significant input had been received from the Connecticut Department of Environmental Protection.  Town Planner Whitten had provided DEP with a copy of East Windsor’s current Flood Plain Regulations; upon review DEP suggested the changes before the Commission this evening.  Deletions are shown in struckout type; revisions/additions are shown in red underlined type.  Town Planner Whitten summarized that the regulations, and their definitions, are language and terms used across the nation to ensure consistency of the regulations.  

Town Planner Whitten reviewed some of the minor changes, such as a definition of Market Value of a property.  She noted three alternatives are proposed/offered by DEP.  Based on discussion with Town Assessor Madore Town Planner Whitten indicated they have chosen a structure’s cash value at the time of an incident.

Chairman Ouellette requested Commissioner’s comments.  Commissioner Farmer cited discomfort/disagreement with various language, such as:

*       definitions of base flood elevation vs. 100 year flood level  - Town Planner Whitten indicated the flood level depends on the mapping in a given area; both definitions are really the same thing and are used interchangeably by DEP/FEMA.

*       coastal and ravine areas, he questioned their applicability to East Windsor?  Chairman Ouellette suggested these are all-encompassing definitions used across the country.

*       disagreed with prohibiting storage within the flood zones of recreational vehicles as specified under the regulations.  Commissioner Farmer felt the Zoning Enforcement Officer could make people move vehicles stored along the river on South Water Street.  Town Planner Whitten suggested the intent of the regulations is to get people to move anything that can float out of the flood zones.

*       felt the regulations should include a grandfathering clause.  Town Planner Whitten cited        references in the regulations defining new construction as anything started after 4/15/1978.  If anything is changed on an existing structure after that date the changes must meet the current regulation requirements.  

*       challenged the percentage definitions for substantial damage and substantial improvements.  Town Planner Whitten reiterated these are regulations consistent throughout the nation.

Town Planner Whitten noted that under Section b - Specific Standards, Item 11, Page 8, the DEP is offering the Town to either allow, or disallow, storage of recreational vehicles in specified flood zones for a period of less than 30 days.   The vehicles must be licensed, and ready for highway use, as well as stored under specific conditions.  The Commission agreed to ALLOW STORAGE FOR LESS THAN 30 DAYS.

Commissioner Farmer wanted to discuss market value again.  Town Planner Whitten reiterated that based on discussion of the alternatives proposed she and Town Assessor Madore have decided it’s the most appropriate to use the cash value of a structure at the time of an incident.  Discussion followed as to how to determine that value, especially if the structure has been destroyed.  Would it be the assessed value of the property, which is actually 70% of the property value; would that figure include the land value; would the services of a professional appraiser (an objective third party) be used?   The Commission decided the use of the professional appraiser to set the Fair Market Value was the best method to use.

Commissioner Matthews cited when applicants appear before the Commission and the plans include a retention pond they refer to a 100 year flood or a 10 year flood; Town Planner Whitten clarified that the engineer refers to a 10 year storm rather than flood.  Commissioner Matthews questioned who can the Commission point to regarding the validity of that reference?   Is there a definition regarding the volume of water that defines a 10 year storm?   Town Planner Whitten suggested that information depends on the watershed area and varies from site to site; she noted there are complex programs which the engineers run that determine those calculations.  Calculations regarding drainage are submitted with every application and are included in each Commissioner’s packet for application review.  Town Engineer Norton reviews that information on each application and offers the Commission his comments/recommendations via a memo submitted during the hearing/application.  Discussion continued; Commissioner Matthews ultimately suggested he had no problems with the flood plain regulations as proposed.

Town Planner Whitten advised the Commission there are not a lot of changes a community can make to the flood plain regulations.  If a town doesn’t abide by them then FEMA is not as likely to assist when an incident occurs.  Towns can’t do things that will cause obstruction of the flood zone or decrease its capacity.  

Commissioners Thurz and Devanney had no problems with the regulations before them either.

Discussion followed regarding the process for approval of the proposed Flood Plain Regulations.  The regulations must be referred back to DEP and CRCOG, then the Town can schedule a Public Hearing which includes public input.  At the suggestion of Chairman Ouellette Town Planner Whitten will inquire if a representative from the DEP can attend the Public Hearing to answer the public’s questions.  The Public Hearing is anticipated to be held at the Commission’s September 10th Meeting.  


Devanney moved/Thurz seconded/
VOTE:   In Favor:       Devanney/Matthews/Ouellette/Thurz
                                Opposed:        Farmer
                                Abstained:      No one


Farmer moved/Devanney seconded/VOTE:    In Favor:  Unanimous

BUSINESS MEETING/(3) Correspondence:  Request from Rya Corp. for backing to go to OPM for sewer service area change:

Appearing to discuss this issue was Attorney Bruce Fader, representing Rya Corporation, and Russ Heinz, surveyor for Rya Corporation.  Attorney Fader reported the intent of his appearance before the Commission is to seek support for his client, Rya Corporation, to go the Office of Policy and Management (OPM) for approval of an Interim Change Application which would revise the Sewer Service Map proposed for the Town of East Windsor.   Lengthy discussion occurred, which included the following:  

Attorney Fader gave a brief history of the situation, noting that Rya Corporation is the developer for the Hemlock Court Subdivision located off East Road; the owner of the property was Myers Nursery.  The subdivision was proposed to be constructed in three phases.  Initially the developer proposed construction of Phase I, at which time the PZC required submission of a conceptual plan showing the scope of all three phases of the subdivision, including proposed infrastructure.  The PZC initially approved Phase I, and subsequently approved Phase II.  Construction of both phases included a roadway system, including a loop road, which would eventually connect all three phases of the Hemlock Court Subdivision, and a public water supply to alleviate concerns for the existence of EDBs as the property was previously used for farming operations.  Open Space for the entire subdivision was offered at the time of approval of Phase I.   A specific application for Phase III was never submitted; approval has not yet been granted.  All three phases of the subdivision were proposed to be served by septic systems, which were installed in Phases I and II.   While construction of Phase I and II of the Hemlock Court Subdivision was occurring, an excavation permit was approved for the land to the rear which would eventually be the location of Phase III.   The Phase III land was excavated by a third party; Rya Corporation was not aware of the specifics of the excavation permit.    Attorney Fader and Mr. Heinz alleged that the area was significantly over-excavated.    Rya Corporation was unable to begin construction of Phase III until the excavation operation was completed.  Rya Corporation, which had proposed septic systems for the potential lots within Phase III, did final testing and found the excavation was much deeper than proposed.  They subsequently received a letter from the North Central Health District (NCHD) which said the site no longer contained native soils, and the land was therefore unsuitable for septic systems for the subdivision, or even for farming, which requires a 6” layer of topsoil.  

The Commission subsequently reviewed, and approved, the Quarry Meadows Subdivision, owned by SJK Kement Construction.  That subdivision, which is located off Depot Street, includes a public sewer line.  The rear of the Quarry Meadows Subdivision is directly adjacent to the boundaries of Phase III of the Hemlock Court Subdivision.  Should construction begin the Quarry Meadows Subdivision will share/benefit from the public water brought into the Hemlock Court Subdivision.

Previously the PZC was the agency which held the authority to grant subdivision approval which, when appropriate, included public sewer service.  Responsibility regarding approval of sewers later changed to the Water Pollution Control Authority (WPCA), which was the agency, in conjunction with the OPM, that developed the current proposed Sewer Service Area Map for the Town of East Windsor.  Bill Hogan, of the DEP, recently came before the PZC with the WPCA to acquire the PZC’s input regarding the proposed Sewer Service Area.  Attorney Fader noted he also appeared before the Commission to try to encourage everyone to move the Sewer Service Area line over to include Phase III of the Hemlock Court Subdivision but he heard the Commission didn’t want to make that change at that time.  

Attorney Fader reported he and Mr. Heinz went to the OPM for an Interim Change Application, which would allow the WPCA to include Hemlock Court in the OPM/WPCA Map    Attorney Fader referenced the OPM/WPCA Map, noting an area designated as a Conservation Area which includes the property proposed for Phase III of the Hemlock Court Subdivision.  Under the Interim Change Application he is proposing to change that Conservation Area to a Growth Area, which would allow inclusion of sewers in a less densely “used” area.  He is seeking support from the PZC regarding that change.  

Chairman Ouellette questioned what makes this situation/property unique to request the Commission’s support?  He noted other abutters could come forward to make similar requests.  Attorney Fader suggested Rya Corporation came in initially with a concept plan for all three phases, and approvals of Phase I and Phase II were made including infrastructure to support the entire subdivision.  After construction was initiated on the subdivision the approval agency for sewer expansion was changed from the PZC to the WPCA.  Rya Corporation purchased a public water system that others will benefit from.  Attorney Fader acknowledged there is a lawsuit with the WPCA but they are trying to work within the framework of the OPM structure, which is to solicit local support for the Interim Change Application.  It makes sense to include this property in the Sewer Service Area.  

Town Planner Whitten noted that from a planning perspective this subdivision was a long and convoluted process; nearly all of the present Commissioners and herself were not on board at the beginning of these approvals.  Open Space offered was over and beyond what was required and was granted to provide access to the river corridor; Mr. Heinz recalled the Open Space offering actually began with the Brookwood Court Subdivision.  From a planning perspective Town Planner Whitten would rather see the Hemlock Court Subdivision completed than see that gapping hole in the landscape.  Farmland isn’t the best use of the remainder of the parcel as you now have two roads running out into what would be a farm field.   The people who purchased their homes had the expectation there would be a loop road connecting to another phase of the subdivision.  However, the Town made a policy with regard to the sewer service area and this Commission must stick with that policy.

Commissioner Farmer indicated that when he first heard this request he was not aware that sewers had been approved next door; it makes sense to complete this development.  He cited concern that in adding this property to the Sewer Service Area then another property must be taken out.  Town Planner Whitten clarified the intent is not so much to take out other properties as to seek a balance for growth.   Commissioner Farmer felt it didn’t make sense to have sewers for the Quarry Meadows Subdivision and not for the remainder of Hemlock Court.  Commissioner Devanney concurred with Commissioner Farmer, noting this situation isn’t the same as others seeking the Commission’s support; this subdivision is already started, they have put in infrastructure that others will share, this is a unique situation.  Attorney Fader suggested this situation is not a self created hardship.  The excavation contract was not between the third party and Rya Corporation.  

They have tried to work within the system; they have tried to work with the WPCA and that didn’t work so they then tried to work with this Commission and the WPCA and that hasn’t worked.   They then went to OPM and were told to seek support from the local PZC and have made this request.  

Additional discussion occurred regarding the following points:

*  the timing and the process for filing  for revisions of the Sewer Service Area and communication between the Town and the developers of Rya Corporation/Hemlock Court and Kement/Quarry Meadows Subdivision regarding that process.

*  the interpretation of the NCHD’s letter regarding installation of septic systems - are they totally unacceptable or must they be built to higher standards - and the affect of that decision on the marketability of  Phase III.

*  the degree of excavation for the area of phase III and the process for enforcement of same at the time of excavation vs. currently; and the affect of use of land on the purchase option value.

Commissioner Matthews agreed the completion of the subdivision was preferable to the excavated site, noting the ugliness of the parcel as it stands.  Commissioner Thurz questioned if other requests are coming in?   Town Planner Whitten felt this wouldn’t be setting a precedent because of the uniqueness of the situation.  She questioned wouldn’t it be better to see the project completed  the way it was developed conceptually?  The Open Space offered was given based on the conceptual plan.  This is the final phase of a numerous phase and complicated application.  From a planning perspective you would want to see it completed, and this area is where the last phase would occur.  There are no soils there now.  If Quarry Meadows weren’t going in with sewers right next to this area then maybe the request should be denied.  Commissioner Devanney reiterated that the people who purchased in Phase I and Phase II of Hemlock Court expected there would be a loop road eventually.  The Commission continued to review circumstances of this request.


DISCUSSION:  Commission Matthews questioned if the motion should be modified to clarify the Commission’s support of the request for change from the Rya Corp. involves a unique situation of a partially completed subdivision for which the conditions of the surrounding environment have changed due to other applications on adjacent properties, and is in an area adjacent to an approved subdivision to be served by public sewer to be

built within the Sewer Service Area proposed on the proposed Town of East Windsor Sewer Service Area Map.

Farmer moved/Devanney seconded/VOTE:    In Favor:  Unanimous

BUSINESS MEETING/(2)    Fee Schedule:   Tabled

BUSINESS MEETING/(3)    Correspondence: See discussion on Rya Corporation

BUSINESS MEETING/(4)    Staff Reports:

Town Planner Whitten advised the Commission of renewed interest in a parcel on South Water Street with access on Route 5.  Discussion followed regarding potential uses.


MOTION: To APPROVE the Minutes of Public Hearing #1532 dated July 8, 2008 as amended, CONTINUED HEARING:  Herb Holden Trucking, Inc - Special Use Permit/Excavation to allow earth products removal on property located on the west side of Wapping Road, owned by Northern Capital Region Disposal Facility.  [A-1 and M-1 Zones, Map 41, Block 65, Lot 31], Page 9, Condition #18 - An oversized 300 foot gravel anti-tracking pad leading to the driveway shall be installed and mail  maintained to further minimize dust nuisance.
Devanney moved/Gowdy seconded/VOTE:  In Favor:  Unanimous


*       Apothecaries Hall Enterprises Enterprises, LLC - Motion
*       Herb Holden Trucking - Plans
*       East Windsor Sportsmens Club - Plans


MOTION: To ADJOURN this Meeting at 9:30 p.m.

Devanney moved/Farmer seconded/VOTE:  In Favor:  Unanimous

Respectfully submitted,

Peg Hoffman, Recording Secretary, East Windsor Planning and Zoning Commission