beagenda

CONSERVATION COMMISSION/INLAND WETLANDS AGENCY

SPECIAL MEETING

MARCH 16, 2006

PAGE 5

Mr. Zawadzki: Do you have any idea at this point that the number of hours that wou= ld have to be farmed out? You mentioned farming out engineering work and that can get pretty expensive, my guess is $300 or $400 an your, and I don’t know how much we would ava= il ourselves of that, but let’s say Chuck does what he’s doing now and conti= nues doing the land use part which is our part, but Roy would have to be concern= ed with how many hours he would have to farm out, I would think.

Ms. Robson: A couple of things related to that point. One is there will be undoubtedly s= ome additional consulting engineer work that would be required because Chuck wo= uld be busy with other activities. How much I thin is going to vary each year, depending on the projects we have going, the authorizations that we have, so it’s hard to predict, but I will tell you that even though I believe, certainly there will be long term savings, maybe not short term savings because my recommendation to the Town Council is that the current employees that are impacted by this remain whol= e in terms of their paid compensation, if you didn’t do that there would certainly be more immediate savings, but if you’re going to keep the employees whole, then I’m looking at long term savings by this reorganization versus immediate savings, but in any case, whether we save or spend, it’s still my recommendation in terms of the organizational improvements that I’d like to make, it’s still my recommendation that we move forward. To specifically answer your question, I don’t know the complete amount f= or consulting engineering, I think it will depend on needs, some years will be more than others.

Mr. Zawadzki: Yea, I just raise it because it has to be a consideration; it wouldn’t impact us probably but the other thing is the land use aspec= t of it. I know Chuck spends a lot= of time in the last couple of years since I’ve been on the Commission, b= ut as you know in that proposed = 6 month moratorium was discussed, a lot of developers jumped on the wagon and there= a lot of stuff at it and I think we’re still getting the bubble so to s= peak and we’ve been getting a lot of development, more than this town has = seen I think in any2 year period, although I’m just saying that off the to= p of my head, I don’t have the facts behind me but that’s my impress= ion and so that’s going to go by to, cause as interest rates go up we’ll have fewer developments and we’re running out of viable land. Mary probably has a pre= tty good idea of how many actual housing unit shave been proposed in the last c= ouple of years, but be that as it may, Chuck’s workload is going to vary th= ere too.

CONSERVATION COMMISSION/INLAND WETLANDS AGENCY

SPECIAL MEETING

MARCH 16, 2006

PAGE 6

Ms. Robson: There will be some additional time, some engineering additional time= that Roy can put towards this if he’s not responsible for the full enginee= ring function. Will it be a lot, n= o, I’m not naïve, it won’t be a tremendous amount, so we̵= 7;ll have to work through it and see, but again I’m looking at long term structural organizational improvements and you have to start somewhere. You have to just decide this is wh= at you think will make the improvement and move forward and there may be a year or= two or I don’t know how many that we’ll rely more on a consulting engineer than folks would prefer, but again I think the improvements internally, organizationally, and in terms of the services we’ll end = up providing I think will be worth that cost.

Mr. Zawadzki: the last thing that I would like to mention is having Moosa as the Wetlands Enforcement Officer, and that would take some things off of Chuck,= but also he’s eminently qualified and has been doing a great job for us.<= o:p>

Ms. Robson: Yea, I certainly consider that, it just depends again in the union issues, make sure there’s no concern s there. Chuck Berger obviously has some pr= etty strong background as well, but it would be something I would certainly consider.

Mr. Duplissie: I’m concerned about the fees, actually. We have, If you’re farming o= ut the engineering, this came up years back when we were talking about attorneys, = and if we had full time legal counsel within the Town we could pay a full time attorney $60,000, $70,000 a year and do the Board of Ed and the Town of Watertown, but I was looking at the budget the other day and we’ve got $140,000 for legal counsel for the Board of Ed and what was it, $110,000 for the Town of Watertown.

Ms. Robson: Well our request this year is about $160,000.

Mr. Duplissie: So $300,000 for legal counsel that we’re farming out, we could have 4 attorneys full time working for the city instead of farming it out t= hat way. I’m concerned that we’re going to farm out some engineering and before we know it, we’re going to be paying $150,000 a year in engineering.

Ms. Robson: Let me just clarify the consultant engineer role. As I see it, the l= and use portion would not get farmed out, would not be the subject of a consult= ant, it would be more of the public works projects, the large road projects, the drainage projects, or what have you, that’s what I think we would loo= k to use a consultant for, so in terms of the land use engineering again Chuck is spending a good 60% to 70% of his time on that anyway and I don’t see that changing. I dot’ t= hink we’re looking to have a consultant engineering for instance sit with = you and serve your board.

CONSERVATION COMMISSION/INLAND WETLANDS AGENCY

SPECIAL MEETING

MARCH 16, 2006

PAGE 7

Mr. Duplissie: And that brings up the other thing that we’ve talked about in = the past, and it’s been brought up when we were doing the new regulations= was the fees that e charge. You’re saying that Chuck’s percentage of his time, 60% to 70% of his time is on land use, and with these subdivisions going in, and we’re charging $350 for this developer to bring us in a subdivision at $50 per lot, we should be $1,500 for that development and $1,000 to $1,500 = per lot on top of that because why are we paying our engineer to go over all of this work for subdivision and these developers are making millions of dolla= rs on their subdivisions and we’re having to pay for their engineer. It doesn’t make any sense. Why don’t we have larger fees? We have antiquated fees= at $50 per lot.

Ms. Robson: Well I have no problem with larger fees. I’d be happy to have more re= venue in the budget.

Mr. Duplissie: I figured I’d bring it up today because I’ve brought it = up a couple of times and we’ve been told well it’s going to come, it’s going to come, but it hasn’t come yet.

Ms. Robson: I think that’s really more what you folks might deal with in t= erms of making those changes to the fees. Now in fact P & Z talked about it lat night, and there is some concern about, gee if you make them too expensive, you’re trying to be business-friendly and if you make them too expensive you’re sort of defeating the purpose. I think that’s your call. I would be wholly supportive of additional fees, given our revenue picture.

Mr. Duplissie: It’s not that you’re going to have an investor that come= sin and put up a 15,000 square foot building and now you’re going to hit = them with $15come, but it hasn’t come yet.

Ms. Robson: I think that’s really more what you folks might deal with in t= erms of making those changes to the fees. Now in fact P & Z talked about it lat night, and there is some concern about, gee if you make them too expensive, you’re trying to be business-friendly and if you make them too expensive you’re sort of defeating the purpose. I think that’s your call. I would be wholly supportive of ad= ditional fees, given our revenue picture.

Mr. Duplissie: It’s not that you’re going to have an investor that come= sin and put up a 15,000 square foot building and now you’re going to hit = them with $150,000 a year in taxes, this is a one time feel. A developer brings us 14 lots and = we charge him $900. And then our= engineer works on it for 6 weeks. That doesn’t make any sense. Why are we paying for that. Where= as if he brings us those 14 lots, he can turn around and sell them for $1,500,000. $15,000 is not go= ing to make a difference to him.

CONSERVATION COMMISSION/INLAND WETLANDS AGENCY

SPECIAL MEETING

MARCH 16, 2006

PAGE 8

Ms. Robson: I agree.

Mr. Undercuffler: Plus the residential is not an economic development issue.

Ms. Robson: Right.

Mr. Zawadzki: You can still be user friendly and charge the developer.<= /span>

Mr. Duplissie: And it might help a little, when he comes to us, maybe he won’t bring us that 11^th lot, maybe he’ll keep it to 10.

Ms. Robson: Or maybe he’ll have a more complete picture for you when he do= es come, instead of, as you said, the engineer spending 6 weeks or whatever the time, maybe they’ll sharpen their pencils.

Mr. Duplissie: And that’s our big concern, because I have no problems reading= a plan, I don’t have a problem looking at a whopping site, but I don’t have the engineering background that Chuck has, so we really le= an heavily on him, so when we’re having a meeting, and all of a sudden t= his developer, he bring this 4 professional in, we turn around and look at Chuc= k, and if Chuck is not here, or if the engineer, if it’s not Chuck, it’s somebody else, if he’s not here, then everything gets put = on hold and goes to the next month, and we have to wait 30 more days. It’s beautiful to have him h= ere.

Ms. Robson: But he would stay, he would remain.

Mr. Duplissie: As long as that doesn’t change we’ll be happy.

Ms. Robson: No, I don’t see that changing at all.

Mr. Undercuffler: I have to support what Jim said, my concern would be the drain on Chuck’s time. I just wa= nt to make sure that he does have the time the things that he now does or is need= ed to do for wetlands. The other= thing I’m wondering is, and I’m assuming here that certainly a high percent of the cost of these departments is the personnel. And if we’re not talking per= sonnel changes, where is the benefit?

CONSERVATION COMMISSION/INLAND WETLANDS AGENCY

SPECIAL MEETING

MARCH 16, 2006

PAGE 9

Ms. Robson: Long term savings. If you’re going to keep employees whole now, through attrition you would make those changes later. And= there are some changes in terms of the difference between, you know a department = head gets comp time, supervisors which the current department heeds would then become get straight time up to 40 hours and overtime after 40 hours so there are some savings there. The overtime that we’re spending for Chuck Verger, last year I think it w= as about $4,700 or so, so we are recouping some of that because now Chuck is getting comp time, so like any estimate you can take a look at the long or short term impact. My purpose= again is more organizational than it is savings but I do believe long term there = will be savings.

Mr. Undercuffler: So you think that a reorganization would create that much in efficie= ncy that it’s going to be a benefit?

Ms. Robson: I do.

Mr. Undercuffler: You can’t reduce personnel costs, where else can you get savin= gs?

Ms. Robson: I think it’s an improvement in service. Again I think we spend in fact lit= tle bit more up front, but I think long term there is an organizational benefit= and potentially a cost benefit.

Ms. Russ: Chuck right now you said gets paid overtime after 40 hours, am I understanding that correctly?

Ms. Robson: Yea, he gets straight time from 35 to 40 and then overtime after tha= t.

Ms. Russ: And the department heads get comp time?

Ms. Robson: Yes.

Ms. Russ: So the department heads, if they become a supervisor, they’re still going to be going to these meetings at night?

Ms. Robson: Potentially. I mean I don’t know that they’ll need to go to all of the meetings that = they go to now. It will depend on what the need is.

Ms. Russ: And then everybody will be going to Chuck for Planning and Zoning, Inland /Wetlands and Building?

CONSERVATION COMMISSION/INLAND WETLANDS AGENCY

SPECIAL MEETING

MARCH 16, 2006

PAGE 10

Ms. Robson Well they’re still obviously use existing staff as well, but C= huck would now be this umbrella department head, so if there are concerns, issue= s, follow-up needed, etc. Chuck would be the one to pull all of those things together. But it isn’t = like the rest of the staff disappears and Chuck has to do all of it. In fact what I think will happen is because Chuck will be handling more of the administrative managements functions, Mary’s time would be freed up, more of the technical time would be freed up to do some additional things that time right now doesn’t allow for.

Ms. Russ: What kind of an increase would he be getting if this goes through?

Ms. Robson: I have estimated in my proposal $5,000 to $8,000; in my budget I put= in $6,000. Ultimately it’s= my recommendation to the Town Council and they make the final decision.

Mr. Jones: My suggestion is this, that when you a have a reorganization, everyb= ody involved, the employees, will have certain thoughts, and we have been very = well served I think fro all the people that provide information for us, so the better we’re served, the more likely it is that any changes that might occur have a downside or the potential for a downside at least, so I’m jus suggesting that there is this law of unintended consequences and I suggested that if this goes through there should be a serious effort made to all of the employees to make sure that they’re on board and as happy = as they can be kept, because not everybody will benefit and when I was once reorganized, I thought I had an opportunity to benefit, and I didn’t benefit, and therefore I was a little bit disappointed. And that wasn’t good for mor= ale, so when these things happen morale is a concern, and I suggested that all t= hose that are involved here should be maybe patted on the head a little bit or a little tender loving touch.

Ms. Robson: Any other thoughts, questions? Okay. I have yet to me= et with the Z.B.A. and I’m not sure I’ll actually be able to do th= at in the timeframe that the Town Council has asked for this matter to be brou= ght up again. They and I are tryi= ng to resolve it as quickly as possible, because obviously it is difficult in cer= tain respects and so my intent will be to go back to the Town Council some time = next week, if not Monday’s meeting, then maybe a special meeting for a var= iety of things, this might be one of them, talk to them about the comments that I’ve received, the feedback, the changes that I have no problem making and then see what their thoughts are and whether or not they’ll go ah= ead with the reorganization so you won’t have to wonder for too long what= the ultimate outcome is. I’m hoping that a decision is made relatively quickly. Again, I appreciate your time and = I know it’s an additional meeting for you but I appreciate it, and if you ha= ve any questions that you think of after you leave here, feel free to give me a call and I’d be happy to go over this with you. Thanks.

CONSERVATION COMMISSION/INLAND WETLANDS AGENCY

SPECIAL MEETING

MARCH 16, 2006

PAGE 11

4.          &nb= sp;       Old Business

A.      = ; Discussion and Possible Vote on the Conservation Commission/Inland Wetland Agency Prop= osed Citation Enforcement Ordinance

      &= nbsp;     Ms. Barton: There were some questions at the last meeting about can we raise the fines, Moosa sent you out the statute that I pulled out, it’s only $1,000. There’s a tenta= tive meeting set up with the Ordinance Subcommittee, if you approve this, on Mar= ch 20th, and I think Jim said he was going away so you may want to have someon= e, another commission member attend, but Atty. Pilicy is here to talk about it= .

  &nbs= p;         Mr. Undercuffler: W= ell it says $1,000 per occurrence, doesn’t it?

      &= nbsp;     Ms. Barton: Correct, and that’s the maximum the statute permits.

  &nbs= p;         Mr. Undercuffler: S= o they could have a daily occurrence.

      &= nbsp;     Mr. Duplissie: Is it $1,000 per occurrence or $1,000 per day?

      &= nbsp;     Ms. Barton: I don’t have it in front of me.

      &= nbsp;     Mr. Duplissie: I thought it was $1,000 per day.

      &= nbsp;     Ms. Barton: Per day. And typically= when the courts, when you take this violation to the courts, they’ve been = very welcoming about giving the fees back. We haven’t had one go to court where we’ve gone that far with a wetland violation, but they’re really good about giving court = fees for a wetland violation when you track the record. The one time we did get for a zoni= ng violation, we received like $18,000 from the court for the fees, so with wetlands, they tend to me a little more nice about if it’s a violation, and they find the Town to prevail, they seem more inclined to give it for the wetland violations. Does anyone have = any questions of Franklin about the ordinance?

CONSERVATION COMMISSION/INLAND WETLANDS AGENCY

SPECIAL MEETING

MARCH 16, 2006

PAGE 12

  &nbs= p;         Atty. Pilicy: I= think the ability to establish an ordinance of this nature is relatively new in Connecticut. It started with = zoning enforcement, but was not very often used, an d more recently it’s bei= ng used and now the wetlands legislation has caught up with the zoning legisla= tion so that you can have such an ordinance.&nb= sp; What’s unique about this is the amount of the fine. This is sort of unprecedented beca= use the general authorization for municipalities to have ordinances for anythin= g, caps the penalty at $100 a day per offense, so it’s unusual in that sense. I believe the example = cited by the Zoning Officer with respect to zoning enforcement situation where the Town obtained a court judgment that there was a violation and then further violations or failure to correct the original violations over a long period= of time resulted in the fine growing to a big number and ultimately both the t= rial court and the appellate court affirmed that number so the property owner did have to pay it, but with wetlands enforcement the greater urgency is to obt= ain remediation, is to stop the violation and obtain remediation. The threat of a large fine in the = more real threat of the violator being required to pay the cost of the enforceme= nt is really what you have by way of muscle in terms of the ordinance. The one drawback to the ordinance = is that you lose control of one part of it, and that is that the ordinance procedures is subject to an appeal, to a civilian enforcement or hearing officer, and that hearing officer may or may not be familiar with wetlands regulation, may or may not be sympathetic to wetlands regulation, and may f= eel that the violator is not such a bad factor as you may feel. Under your present enforcement pow= ers, you issue your cease and desist, thereafter you must hold a hearing within a very limited prescribed number of days and if the matter is not resolved at that point, you can do two things, you can put a notice of violation on the land records which will tie that property up essentially until it’s in compliance, but you can also bring a court enforcement action, so this is j= ust an alternative that may be something that you’re interested in pursui= ng. It can’t hurt to have it, but I’m not so sure that you would want to use this in every case. You may want to proceed with your = cease and desist and require your violator to come before you as opposed to just having your agent cite someone under the ordinance. If you cite someone under the ordi= nance, you’re kind of cut out of the future proceedings.

      &= nbsp;     Mr. Zawadzki: Typically what type of a person does get appointed as the hearing officer?

      &= nbsp;     Atty. Pilicy: We haven’t had one yet.

  &nbs= p;         Mr. Zawadzki: N= o, but other towns you heard.

      &= nbsp;     Atty. Pilicy: Well the only requirement under the legislation is that it not be a = Town employee or a police officer or a person otherwise charged with the enforce= ment of ordinances in the Town.

CONSERVATION COMMISSION/INLAND WETLANDS AGENCY

SPECIAL MEETING

MARCH 16, 2006

PAGE 13

      &= nbsp;     Mr. Duplissie: And who appoints that officer?

      &= nbsp;     Atty. Pilicy: I’d have to look back, it’s either the town Manager or t= he Town Council.

  &nbs= p;         Mr. Duplissie: S= you could actually appoint somebody who is a retired land use officer or a reti= red engineer who is familiar with the functions of wetlands and the enforcement= for P & Z?

  &nbs= p;         Ms. Barton: W= hen I did some research on it, in Torrington it’s a retired attorney who do= es it. Other communities accept = part time land use officer in another town that does it in a different town, it = just depends on . . . . I’m not sure it has to be a paid person or not. Some communities paid, others did = not. It’s only on an as needed basis. It’s not a treme= ndous revenue generator. Most of the communities said maybe they generated $1,600, and then once people knew that this was an option under the ordinance, they complied rather quickly. One case told me that the hearing officer actually reduced the fines at the hearing. It’s not a generator of reve= nue, but it is a tool for enforcement.

  &nbs= p;         Mr. Zawadzki: Franklin, if we have this we’re really, what brought this up in the first place, we get these situations where somebody comes to us and it’s because somebody called Moosa and they were doing something and Reflections comes to mind, they clear cut when they weren’t supposed = to, they had a sequence of events that they’re supposed to follow and they didn’t do it. It’= s like “oops” and now what and we feel kind of defenseless because thi= s is something that’s done. You can’t put the trees back. If somebody bulldozed over the wet= lands, you can’t put that back, well you can, but that’s the type of t= hing we’re going for, but what we’d like to have the public be aware that we have some way of preventing that from having or clamping down on pe= ople that do that sort of thing because I think some of these people do this alm= ost kind of knowingly that they’re not really going to suffer any consequences, or maybe get their hand slapped or get a verbal put down, but that’s about it, and does this really address that?=

      &= nbsp;     Atty. Pilicy: Yes, it gives you an additional tool to use, because in section 2 it says if the Wetlands Commission or its agent finds that any person thatR= 17;s conducting or maintaining any activity, facility or condition which is violation of the wetlands regulations, the commission itself or its duly authorized agent may issue a written order by certified mail, and that order can contain a whole bunch of remedies but that order can also contain fine,= so the ordinance is a good thing to have.&nbs= p; How extensively you use it will be on a case by case basis. Reflections, as a practical matter= of what occurred, was probably a good way to go, but if you had the ordinance = you could have coupled everything you did with a fine.

CONSERVATION COMMISSION/INLAND WETLANDS AGENCY

SPECIAL MEETING

MARCH 16, 2006

PAGE 14

  &nbs= p;         Mr. Undercuffler: W= ell how much could the fine be, $1,000?

      &= nbsp;     Atty. Pilicy: = Yes.

  &nbs= p;         Mr. Undercuffler: Or could it be $1,000 a day until they did something?

      &= nbsp;     Atty. Pilicy: Well if you impose a fine of that much, then you’ll find out pretty quick how good the ordinance is, but you can impose a fine of $1,000= for every day that the activity continues. You can impose, let’s go back = and use that as an example. You c= an impose a fine of $1,000 based on a finding that the property owner, develop= er proceeded outside of the scope of the permit that you issues, they broke the rules. Then you could give th= em 10 days to fix it, and Day 11, if it’s not fixed, you begin fining again. So it gives you a litt= le bit more power in how you shape a remedy. IN that case you shaped a remedy where you required stabilization, remediation, engineering reports on a weekly basis, Town inspections every = so and so forth, but it wasn’t coupled with a monetary penalty. Here you have the ability to add a monetary penalty.

      &= nbsp;     Mr. Duplissie: But at Reflections you had to go in and hammer out that agreement wi= th them after the fact. They were supposed to go in . . . .

      &= nbsp;     Ms. Barton: Well what happened was the wood cutter, I’m not sure if it was intentional or not, because Moosa and I had both met with them before and t= old them they couldn’t, they had to cut them in phases, and they’re claim was the wood cutter was overextended, so once we were aware of it, everything stopped. There was= no inspection by any town department. There’s a town wide letter that goes but, the Building Officia= l, the Assessor, you don’t get any services and we shut then down and litera= lly stopped their project and required the engineer, but it shouldn’t have gone that way. They had to do weekly sequence of construction, inspections, they spent quite a bit of mon= ey and time.

      &= nbsp;     Mr. Rafey: In that case the correction measures that we enforced on them cost t= hem more than this ordinance because there was a lot of extra work so they were really sorry about what happened.

      &= nbsp;     Atty. Pilicy: But the lost a lot of time too.

      &= nbsp;     Mr. Rafey: Yes. Every week we met= with their engineer, their site manager, their workers, 3 or 4 members of their = crew walked the entire property so we could see what was going on and we told th= em how to correct it and they did. For months, like every week.

CONSERVATION COMMISSION/INLAND WETLANDS AGENCY

SPECIAL MEETING

MARCH 16, 2006

PAGE 15

  &nbs= p;         Ms. Barton: A= nd they asked every week if the engineer could go away and (inaudible) for a l= ong time.

  &nbs= p;         Atty. Pilicy: Clarification was asked who appoints the hearing officer, the Chief Executive Officer of the municipality appoints one or more citation hearing officers. Other than police officers or employees or persons who issue citations. So it can be anyone at the discret= ion of the Chief Executive Officer, meaning the Town Manager, but police officers cannot serve or employees of the Town cannot serve or persons charged with = the issuance of citations cannot serve.

      &= nbsp;     Ms. Barton: But your ordinance section says Town Council.

      &= nbsp;     Atty. Pilicy: Well we can change that or we can leave it, we have a choice but we probably should change it to say, unless there’s a late version of the statute that I’m not aware of, I’m reading from the enabling legislation, but it may be that the wetlands statute says the Town Council. Let me check that to= see if the wetland statute is any different.

      &= nbsp;     Mr. Duplissie: The problem is we have this in front of us right now, we have a coup= le of more developments coming up, and we walked a couple of them recently whe= re there’s going to be some major land clearing involved and when they h= ave a company like a Supreme Forrest that comes in and does this in phases, and= we used this at our last meeting, is that Supreme Forrest comes in, and itR= 17;s $30,000 for them every time they come in, whether they do 2 acres or 5 acre= s, cause it’s the move and the start that costs the money, so the develo= per says just do it all at one time, so instead of costing $90,000 for doing th= e 3 $30,000’s they get it done, it cost them $40,000, it’s a $50,000 savings for them, and then they turn around and get fined $1,000. I’d weigh the math just the = way the developer would and it’s pretty simple what the decision is, and = then they’ve had to turn around and we’ll end up doing the same thing that we did over at Reflections, which we put this nice neat thing in order= for them, but the problem is the damage is already done. Look at what happened at Echo Lake= after they cleared those trees, I mean there was a lot of damage that came back, granted in the end we took care of it, but it was that initial damage that = was caused that we can’t make up for.

  &nbs= p;         Mr. Rafey: W= hat happened at Reflections doesn’t happen all the time. In 9 years of my experience here, it’s the only time it happened. Cause in the permit we have like different phases of construction th= at they have to follow and the sequence of construction. We always have preconstruction mee= tings, they come to our office and we tell them what to do first, second, and we follow that. We always go on = the site to make sure they’re following the plans.

CONSERVATION COMMISSION/INLAND WETLANDS AGENCY

SPECIAL MEETING

MARCH 16, 2006

PAGE 16

  &nbs= p;         Mr. Duplissie: I= mean we were up at Fox Crossings and you could see where they could have cleared= a lot more, and they didn’t, they were staying within their boundaries cause they know that they have more subdivision going in and more applicati= ons going in, whatever they have . . . .

  &nbs= p;         Mr. Rafey: A= nd you can see the limits of clearance.

  &nbs= p;         Mr. Duplissie: You’ll see it clearly marked and they’re staying within those.

      &= nbsp;     Ms. Barton: Another one, Mr. Calabrese, he got a little ahead of himself and we pulled him back and it looks really nice, but that’s okay. We try as best we can to reign the= m in, we have preconstruction meetings with the contractor, the engineer and the design engineer is held responsible and most of the time it’s not the design, it’s the execution, and that’s where the problem lies, = and we try to explain that, and that’s why the design engineer has to wri= te as builts. You know we’= ve been working at this a long time. I’ve been doing this 16 years and we have a pretty good system= in place to keep them under control, so we try the best that we can. You have to remember, up until pro= bably about 3 years ago, you never had the town engineer at your meetings. That was my decision to put it in = the budget, that was never done before. I came to the wetlands for 6 years, never was the town engineer, but= it was my decision to put that money in the budget and I went and fought for i= t at budget time, so we’ve made a lot of changes and we’ve tried to = be proactive in our land use requirements, we’ve tried the best we can, = try to provide staff service to the commission.

  &nbs= p;         Mr. Undercuffler: Of course this kind of project that we’re talking about here, you’= ve got a bigger hammer because you can pull them up from any further work and = get their engineers, you can get them to really spend some money. I think what = this ordinance would be particularly good on is these small projects, if a homeo= wner does something, or if a company . . . . .

  &nbs= p;         Ms. Barton: Driveway on the weekend, putting a culvert in, and maybe no one sees= it, and that’s what happens un most of the communities that I did the research is that once you issue the first couple of fines, the word gets out and contractors and loggers . . . .

      &= nbsp;     Mr. Undercuffler: I don’t think we would use it very often, I think it’s j= ust a tool that you aid would be there just in case.

  &nbs= p;         Ms. Barton: T= here is a tentative meeting on March 20^th, the subcommittee, so if you want to vote to go forward with this, and then pick somebody from the commi= ssion, that would probably be a good idea. (Tape #1, Side B ended – may have missed some.)

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      &= nbsp;     Mr. Zawadzki: It’s a good thing to have, even if we don’t use it.=

  &nbs= p;         Mr. Duplissie: It’s another tool in our arsenal.

      &= nbsp;     Atty. Pilicy: The Commission itself can impose fines with the ordinance in place, = so if for no other reason, that’s a good ordinance to have.

  &nbs= p;         Mr. Rafey: B= ut if you want to enforce this, you have to have a hearing officer.

      &= nbsp;     Atty. Pilicy: You have to have citations too.&nbs= p; If you do vote on this tonight it will be subject to the amendment t= hat the provision for the appointment of the hearing officer will be changed to conform with the statute. The underlying statute . . . .

  &nbs= p;         Mr. Zawadzki: Y= ea, it’s said by the Town Council in here.

      &= nbsp;     Atty. Pilicy: Correct, that’s not the case.= Both the wetlands legislation and the home rule legislation on ordinances provide the chief executive officer appoints one or more hearing officers unless there’s a change that I’m not aware of, but I don’t think there is.

      &= nbsp;     Mr. Undercuffler: I think that’s the way to go anyway.

  &nbs= p;         Mr. Duplissie: Y= ea, I don’t want to wait for the Town Council.

      &= nbsp;     Mr. Undercuffler: Yea, it will take forever.

  &nbs= p;         Mr. Duplissie: It’s easier to make a phone call and say let’s go, we don’t want to wait 2 weeks for somebody to have a meeting.=

      &= nbsp;     Atty. Pilicy: Well the Council has to approve the ordinance.

  &nbs= p;         Ms. Barton: I= t has to go to the Ordinance Subcommittee and then they’ll refer it to the Council, then the Council will decide if they’re going to have a publ= ic hearing.

      &= nbsp;     Mr. Undercuffler: We were talking about the appointment of the hearing officer.

      &= nbsp;     Atty. Pilicy: There’s an existing situation where we already have a good num= ber of ordinances in town that are subject to citation enforcement that are also waiting for a hearing officer to be appointed, so in that case you’re= in the same situation as other ordinances that already exist, but in order for= it truly to be enforceable, there must be a&n= bsp; hearing officer in place, otherwise it makes no sense to use the ordinance until you have a hearing officer in place.

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  &nbs= p;         Mr. Undercuffler: A= nd your point was that if we approve this it’s subject to the amendment = that Section 9 reads Chief Executive Officer, not Town Council.

      &= nbsp;     Atty. Pilicy: Correct, that’s implicit in any vote tonight.

  &nbs= p;         Ms. Russ: T= he hearing officer, once this is voted on by the Town Council and it goes thro= ugh, then Meredith can appoint a hearing officer ahead of time and have somebody= on record if Mary or Moosa need or somebody sees someone in violation? Is that what you’re referrin= g to, if someone is appointed and they just sit on the sideline until they’= re needed for a hearing?

      &= nbsp;     Atty. Pilicy: Well in theory they’re already needed because we already have similar ordinances with citation enforcement.

  &nbs= p;         Ms. Russ: That’s what I’m getting out, I know that (inaudible) and this but it would be up to the Town manager to appoint somebody.=

      &= nbsp;     Atty. Pilicy: Correct.

  &nbs= p;         Ms. Russ: A= nd if she appoints say someone tomorrow, that person sits on the sidelines until a hearing is needed, it’s not somebody different every time?=

  &nbs= p;         Mr. Undercuffler: It wouldn’t have to be, it doesn’t say that.

      &= nbsp;     Mr. Duplissie: It’s not a full time position. They’re there on a case by c= ase basis.

  &nbs= p;         Ms. Russ: That’s what I’m saying, say they take you for instance J= im, if she appoints you tomorrow as a hearing officer, you’re notified, b= ut say 2 months down the road there is a need to have you for a Hearing, Mered= ith would just have to call up that hearing officer and say we have this and you need to come to a hearing?

      &= nbsp;     Mr. Undercuffler: <= /span>Well she could wait until the need arises, and appoint somebody then.=

  &nbs= p;         Ms. Russ: That’s what I’m getting at, do you appoint somebody now = and just say in the future if needed you’ll be called upon? Is that how it works; I don’t know, that’s why I’m asking.

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      &= nbsp;     Atty. Pilicy: I think the appropriate thing would be to have hearing officers in place. They may seldom be use= d, but there’s a lot of other ordinances out there where hearing officers are far more likely to be called upon than this one. The one thing that’s unclear= about all this, which will be interesting is, let’s say you have a violation and we’ll use the one that we’ve been talking about, and you sh= ape a remedy that includes certain remediation, certain site inspections on an on-going basis, and 1 or more $1,000 fines. And then the hearing officer recei= ves an appeal. Can the hearing offic= er wipe out all your conditions or just the monetary penalty? So that’s part of what remai= ns to be seen under this ordinance. I’m not aware of any Connecticut court decisions that have interpreted enforcement actions.

  &nbs= p;         Mr. Undercuffler: I= guess another question might be would remediation come under that, be part of tha= t $1,000? I mean could it be viewed that way= ? The legislator didn’t mean t= o do that, did they? In other word= s if we say you’ve got to plant trees, this and that, and that adds up to thousands of dollars.

      &= nbsp;     Atty. Pilicy: But right now, if you had a violation and you issued your normal cea= se and desist, you conduct your hearing within 10 days and you issue a decision that (1) you enter a finding that there is a willful violation of your rules and regulations, whatever they did, and as part of that remedy you’re going to require that they come in for example a landscaping plan, with an engineered drainage system, whatever it is, and that they conduct the remediation within a certain time period taking into account weather conditions. And that’s = your decision. They have 2 choices= at that point. They can either c= omply or appeal that decision to Superior Court, where a judge will then conduct a review or an appeal hearing which will be a record hearing based on whether= or not this agency had substantial evidence to support the decisions that were made. Now we take the alterna= tive approach. Same person comes i= n and you say all right, you’re going to be fined, we’re going to iss= ue a citation or we’re going to give you a fine of $1,000 plus you have to hire a landscape person that’s going to do a plan and you’re go= ing to implement that plan, you have to hire an engineer that’s going to implement a drainage plan, and you must do that by a certain date, and inst= ead now they appeal that decision to a hearing officer, who will not necessaril= y be conducting a record review. I= f they were knowledgeable, if they were an attorney, they might in fact do that because they may feel that he or she is in the shoes of an appellate court = in a quasi judicial if not judicial proceeding so I supposed the quality of the hearing officer, or the education and background of the hearing officer cou= ld be very important, at least on this. I mean this is not like the other ordinances where there is someone burns trash in violation of a burning ordinance or their alarm goes off in violation of the alarm ordinance, where the hearing officer, the violation is not a continuing one, you want to be a nice guy and give the poor citizen a break, but this is a little bit differ= ent.

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PAGE 20

  &nbs= p;         Mr. Duplissie: W= ell we talked about that the other night at our meeting and there are a couple of retired engineers in town who are active in the community who wouldn’t have a problem I don’t think even without pay to be hired as your hea= ring officer for something like this. I’ve talked to a couple of them that would probably volunteer, this is not someth= ing that is going to be a full time job that’s going to take you 40 hours= a week here for 1 weeks. This is something where you may sit down for 4, 5 hours, 2, 3 times, if you need th= at much input, to make a decision, to fix an existing situation.

      &= nbsp;     Mr. Undercuffler: There’s no reason we couldn’t consult with the Town Mana= ger on maybe providing some suggested names and so on for this hearing officer. Maybe even suggest t= his person take one of the D.E.P. . . . .

  &nbs= p;         Ms. Barton: M= aybe come up with a scope of what you want.

      &= nbsp;     Mr. Zawadzki: Well that was my next question . . . .is this job description, has anything been defined, as the duties and responsibilities of such a hearing officer, in other words, or what his powers might be, would he have the pow= er to rescind any previously declared fines and that sort of thing?=

      &= nbsp;     Atty. Pilicy: The power is pretty broad. It basically says that if the hearing officer determines that the pe= rson receive the citation is not liable, the hearing officer shall dismiss the matter and enter that determination in writing accordingly. If the hearing officer that the pe= rson receiving the citation is liable, the haring officer shall forthwith enter = and assess the fines against such person as provided by this ordinance. That’s pretty broad.

  &nbs= p;         Ms. Robson: J= ust as a point of history, when the ordinance was done, there was discussion about when do we hire a hearing officer, and as for the ordinance, it was the Town Council’s responsibility so I’m hearing something a little bit different tonight, which is fine. The decision was made to hire that hearing officer at the time that = an issue came up, so that was the thought behind it and now we’re lookin= g at gee we really need to get this done, and now it’s my responsibility.<= span style=3D'mso-spacerun:yes'> Whatever, if you’re spoken w= ith engineers and they’re interested in doing it, I’m happy to speak with them. I’m a little concerned that based on not only this ordinance, but as Franklin mentioned = the other ordinances, citations that we have to deal with, that we may incur so= me expenses if we can’t get something like that or go through some other agency or share with another town or something along those lines, which I certainly would look to do first, but I guess my long winded response is th= at I may need to actually put this before the Town Council, not only as it relat= es to changing the ordinance, but also to get somewhat of an appropriation, $5= 00 or $1,000, so that if we do need somebody we can get somebody immediately, = you know if we do end up ultimately having to pay, but that was the history and again I’m happy to take any recommendations that you have.=

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PAGE 21

  &nbs= p;         Mr. Zawadzki: T= hank you.

      &= nbsp;     Mr. Undercuffler: So just to go back to, I didn’t really get a complete answer, I don’t think. I understa= nd your point, that we would come up with a remediation plan but we can do that plus the $1,000 then?

      &= nbsp;     Atty. Pilicy: Right now you can.

  &nbs= p;         Mr. Undercuffler: W= ell right now but I’m talking . . . .

      &= nbsp;     Atty. Pilicy: No, under the ordinance you can.&nb= sp; Without the ordinance I don’t think you have the power to impo= se a fine, although a court does.

  &nbs= p;         Mr. Undercuffler: N= o, I understand that. I’m sa= ying with the ordinance we can still require the same kind of remediation we’re doing now, plus the $1,000 or up to $1,000?

      &= nbsp;     Atty. Pilicy: I correct, but I’m not so sure I would recommend that. I’d rather give up the fine = than lose control of what happens, on a big project. I think the ordinance is a = good idea, but I think it ought to be used, at least in the beginning, until we = see how it shakes out around the state, only on small, relatively insignificant violations. My fear is you us= e it on a significant violation, and a hearing officer for whatever reason rules against you, does that mean that you can never begin an enforcement action again on something you consider a very significant violation? So until we see how this plays out, I’d recommend adoption of the ordinance, but use I tin the relatively minor cases, where if you don’t lose the day, it’s not the end = of the world, but you don’t want to lose control of a major significant violation.

  &nbs= p;         Mr. Undercuffler: I= think that makes sense.

  &nbs= p;         Ms. Barton: At least with a major violator, you can send your order, hold your hearing you= can revoke the permit.

  &nbs= p;         Mr. Duplissie: At Reflections, by holding back the building permit and foundation permits.

  &nbs= p;         Ms. Barton: A= nd that’s a blanket letter that I send out. The same thing when inspection fees aren’t paid, and as part of that ordinance they make it hold and if t= hey refuse to, then every town department that has anything to do with the proj= ect that says don’t do anything on this project until they pay because that’s the way the ordinance is written, so it’s the same thing, but it’s a blanket letter even the health department, don’t do = any inspections or review any plans.

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      &= nbsp;     Atty. Pilicy: That cease and desist basically said they couldn’t even walk on the property until they came back to this agency. It was deserved; they earned it, b= ut it showed the teeth that you already have.&nb= sp; I would not have recommended using a citation ordinance, had it exis= ted for that situation.

  &nbs= p;         Mr. Zawadzki: I= think going into this, most of us realized that it’s going to be a case by = case thing.

      &= nbsp;     Atty. Pilicy: Correct, but you may turn your wetlands agents loose on the relative= ly minor offenses, but instruct your agents that you do not want this ordinance used on anything of any consequence.

  &nbs= p;         Mr. Zawadzki: I= think in the time that I’ve been on this Commission the little cases like G= len already mentioned like somebody putting their pool or shed where it shouldn’t, that’s kind of annoying and that’s the kind of thing we were looking at too.

      &= nbsp;     Atty. Pilicy: I’ll tell you another advantage of the ordinance. You can take a yellow pad and draw= a line down it, put the advantages and disadvantages before you use it or don’t, is the situation where right now if you have a relatively minor violation, you issue your cease and desist, depending on the timing, you ma= y be required to have a special meting to conduct that hearing outside of the schedule of your normal meetings, which is a great inconvenience for everyb= ody on the Board, on a relatively minor violation, or the wetlands officer has = to wait and issue it 9 days before your next meeting, so it gives you a lot of flexibility on how you want to deal with the relatively minor offenses where someone is going to really say boy I didn’t know I was doing this wro= ng, I’m going to go fix it, and the matter can be resolved without the ne= ed for a special meeting and without the need for them coming here at all. So it’s worth having, it can= be used on the relatively minor situations to get correction, get people follo= wing the rules, so to speak, without the risk of inconveniencing the commission = to come back for a special meeting and tying you up when you have other more significant applications at a regular meeting.

  &nbs= p;         Mr. Zawadzki: G= ood point. Any other comments?

      &= nbsp;     Mr. Rafey: I think that’s a good idea, you should just have it an if we n= eed it we will use it.

  &nbs= p;         Mr. Duplissie: It would have been nice to have that for the 1,000 feet of road (inaudible) lake. I mean he was in violat= ion the first time he came in front of us.&nbs= p; We ere very nice to him, and then 3 months later he came back and the same nonsense.

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      &= nbsp;     Mr. Rafey: I think that’s a good point, we have a few experiences that af= ter a violation happened and I went to the violator and told him to stop it, and then they submit an application to the Commission after the fact situation = to get a permit for what they did.

  &nbs= p;         Mr. Duplissie: T= hen they do it, and then they don’t pay any attention to that, and they p= ut in 400 yards of gravel in and out of the wetlands.

      &= nbsp;     Mr. Rafey: There are some situations really if you go back and remove what they did, you disturb the wetlands more than what was originally done. Sometimes they do a minor violatio= n, but if you tell them to take a machine and put it back, you’re really disturbing more wetlands.

  &nbs= p;         Ms. Barton: T= he citation ordinance (inaudible).

      &= nbsp;     Atty. Pilicy: Let’s say you had a situation like that, you could instruct yo= ur wetlands officer to notify that individual to appear before this Commission= , at which time you’re going to discuss that violation and at the end of o= ur discussion you could decide, do we want to ourselves or our agents just fine them, because any remediation could cause further adverse impacts than we already have, so the show’s over, but you want some measure of respect and integrity to be administered so you impose your fine.=

  &nbs= p;         Mr. Duplissie: A= nd you impose the $1,000 or the $1,000 per day from the time he was notified?=

      &= nbsp;     Atty. Pilicy: Well, that depends on the mercy of the Commission at the time. Maybe just like any quasi judicial= or judicial proceeding, it’s going to depend a little bit on the attitud= e of the person standing in front of you. I mean if they come in and say they’re sorry, they didn’t know and you believe them, then maybe you’ll show some mercy, but nevertheless get some integrity for your process, but if they come in and s= ay all the right things, but you think that they’re under their breath telling you something different, you know, every case is different.

  &nbs= p;         Mr. Rafey: E= very situation is unique, it’s not like one size fits all. WE have to be flexible to see what= the violation is and based on that we react.

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PAGE 24

      &= nbsp;     Mr. Duplissie: We had a violation where the guy was filling his back yard, had no idea what he was doing, he talked to a guy who was hauling dirt down the road. He stopped the guy and said could = he bring some into his back yard, he had no clue about wetlands, but the thing= was the guy driving the truck knew it was wetlands, said he could fill it for h= im but what do we do then. The homeowner stopped as soon as he was notified, he was embarrassed. But the guy who gave him the fill,= said oh well, they can’t do anything to me, I’m not the homeowner.

  &nbs= p;         Mr. Rafey: A= nother example happened yesterday, somebody called on Woodbury Road that his neigh= bor is cutting trees in the wetlands, and I went there and I noticed that there were some wetlands on the property, but the owner didn’t know, he had= no idea what wetlands were and he was really kind of embarrassed about what he= did was wrong and what should he do to correct it. I told him to just stop what he was doing, don’t remove the stumps, throw some seed around the area and he did. In a situation like that= , if I waited a whole month to come to the Commission and talk to you, just go the= re and see, and if it’s not that serous a situation, and some people rea= lly don’t know what the regulations are, they’re making a honest mistake. I explained the situ= ation to the neighbor.

      &= nbsp;     Mr. Zawadzki: I think it’s clear that we should have this and I thin at this point if there’s no more discussion, I have a motion to approve the citation ordinance as presented with the amendment as proposed by Mr. Pilicy that Section 9 read the same as the state statute.

      &= nbsp;     MOTION:       (Mr. Duplissie, sec. Mr. Undercuffler) to approve the citation ordinance as presented with the amendment as proposed by Mr. Pilicy that Section 9 read = the same as the State Statute.

      &= nbsp;     Discussion:       None<= o:p>

      &= nbsp;     MOTION PASSED UNANIMOUSLY

5.         = Adjournment

&nb= sp;

        &= nbsp;   MOTION:       (Mr. Undercuffler, sec. Mr. Duplissie) to Adjourn the Special Meeting at 6:40 p.= m.

  &nbs= p;         Discussion:       None<= o:p>

  &nbs= p;         MOTION PASSED UNANIMOUSLY

CONSERVATION COMMISSION/INLAND WETLANDS AGENCY

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PAGE 25

  &nbs= p;         Special Meeting Adjourned at 6:40 p.m.

&n= bsp;

Respect= fully submitted,

&n= bsp;

&n= bsp;

&n= bsp;

Ronald = Jones, Secretary

Conserv= ation Commission/

Inland Wetlands Agency

  &nbs= p;         _________________= _________________

      &nb= sp;     Lynn M. LaForme, Minutes Secretary