OLD LYME — Land surrounding a house under construction on Ferry Road was cleared beyond the limits of its wetlands permit despite specific property regulations, raising questions about enforcement and how violations are reported and resolved in the town.
Built on a 1.12-acre parcel at 314 Ferry Road, the single family home will include a walk-out basement area and garage, totaling 4,000 square feet.
The parcel is part of a decade-old nine-lot Eklund Subdivision on Ferry Road and Sandpiper Point Road that received unanimous approval, with conditions, from the Inland Wetlands and Watercourses Commission on March 26, 2009.
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One of the conditions was that “all individual home sites must come before the commission prior to clearing” due to nearby the wetlands. The subdivision abuts Ferry Landing Open Space and Eklund Pond.
All nine lots of the Eklund Subdivision abut the Ferry Landing Open Space, which contains sensitive habitat around Eklund Pond according to Evan Griswold, co-chair of the Open Space Commission and member of Inland Wetlands Commission, in the minutes of the May 24 Inland Wetlands Commission meeting.
When the subdivision was approved, the Open Space Commission requested a no-cutting restriction within 100 feet of the pond “because of the sensitive nature of the pond as a migratory bird and animal habitat,” according to Griswold in the March 23, 2021, Inland Wetlands minutes.
At that meeting, Griswold stated that the information regarding restrictions was never provided to the people who purchased lots and he felt it was important for property owners to adhere to the restriction.
The Inland Wetlands regulated review in Old Lyme is 100 feet.
At 314 Ferry Road, the distance from the edge of the wetlands to the proposed house is 80 feet, and about 75 feet to the deck and walkout, project engineer Stuart Fairbank told the Wetlands commission members at their March 22 meeting.
“This was not a significant activity,” commission member Tom Machnik stated at that meeting, in a motion to approve the application.
The commission voted 5-1 to approve the project with conditions – including adhering to the clearing limits that were hand drawn on the plan at the meeting, a stonewall extension, and the installation of hay bales to supplement the silt fence down gradient of the rain garden on site.
The property’s previous application from the Roger Tory Peterson Estuary Center, which purchased the parcel in April 2019 with plans to build an educational center, raised considerable opposition as well as support. The center bid for a $1.833 million grant in “round two” of the Small Harbor Improvement Projects Program but was unsuccessful and sold the property in August, 2021.
No flags, vegetation clearing
At the March 22 Wetlands meeting, Griswold told Fairbank that he did not see any wetland flags at the construction site as marked on the 2009 subdivision plan — which Griswold said he thought was standard procedure.
According to the meeting minutes, Fairbank said the flags could be staked at the same time as the foundation, but “they don’t typically reflag soil scientist flags … because there potentially can be an issue with misrepresentation.”
A month later, at the April 26 Wetlands meeting, Griswold told the commission he was disappointed that the wetlands flagging hadn’t been redone so that the members could see the boundary.
In the minutes of that meeting, Dan Bourret, a land use coordinator for the town, stated that if the commission wanted the flagging done, “we would require it.”
But at the May 18 Inland Wetlands Commission site walk, members found that vegetation had been cleared from the property in restricted areas.
According to the site walk minutes, Bourret “pointed out on the site plan the area that had been cleared beyond the limits that were approved by the Inland Wetlands Commission.”
Bourret was to “go back to the site to get an exact count of the number of trees that were removed” and would “sketch on a site map roughly the area that was cleared beyond the approved limits,” according to the minutes.
At the May 24 Wetlands meeting, attorney Paul Geraghty, who represented the property owner, acknowledged that “the property was cleared beyond the proposed limits of clearing.”
The applicant was willing to “take the necessary steps to remediate the site,” said Geraghty, according to the meeting minutes.
He said he had walked the site with Bourret “to take measurements and count the number of trees that had been cut.”
Geraghty said he had met with a wetlands specialist to create a plan. He asked for input from the commission, noting that it was possible that the abutting neighbor at 3 Sandpiper Lane had previously cleared an area within the 314 Ferry Road parcel.
Griswold requested that a professional create a remediation plan that included native species of plants. Geraghty said he was working with Justin Theroux, the inland wetlands officer in Baltic, who has a side business creating planting plans
During the public comment period at the May 24 Wetlands meeting, Susan Bates, who owns at 3 Sandpiper Point with her husband, Stephen Bates, said the Zoning Commission granted a special permit for 314 Ferry Road because of the restrictions in the Inland Wetlands approval.
She asked whether the Zoning Commission had been notified of the violation.
According to the minutes, Bourret stated that he was acting as both the Zoning and Wetlands Enforcement Officer, and at this point, he was going “to allow the Inland Wetlands Commission to dictate a restoration plan back to the approved limits of clearing.”
He stated that “it was not his intention to initiate a zoning enforcement matter” unless the wetlands issue was not resolved in a satisfactory way.
He stated that he felt “it was not necessary to have two enforcements.”
Bourret said that if Bates wanted to file a formal complaint, he would bring it to the Zoning Commission at their June Meeting.
Susan Bates said it was “unfortunate that we are relying on people to file complaints” and that she felt it was up to the applicants “to be responsible and follow the rules and regulations.”
Stephen Bates stated that “there is an impact on the neighborhood because of the activities that have taken place” and that he felt “it was disrespectful to the town and the volunteers relative to regulations in Old Lyme.”.
He also stated that “he felt the town has become a little bit casual about accepting people’s actions without being more aggressive about enforcing” and expressed concern that “minimal action was taken because a complaint was not received.”
In the minutes, Inland Wetland Chair Rachael Gaudio stated that enforcement actions are found through complaints “as people go about their daily life” and that it was “incumbent on our Inland Wetlands Enforcement Officer to deal with enforcements and the commission provides direction through the process.”
Bourret stated that “part of the reason he did not initiate an enforcement action after the first violation was because he knew an application was forthcoming” and that “if the application submitted was approved, it would remedy the violation.”
According to the minutes, he said the applicant was proposing remediation.
Bourret also said that he did not have the authority to tell people they cannot cut down trees on their own property unless it was within the upland review area.
According to the minutes, Attorney Ed Cassella stated that, “we presently have a homeowner who is willing to engage the town and have professionals come up with a restoration plan and can possibly avoid enforcement if they follow through with that process,” and “if that does not occur there are other remedies to take in enforcement.”
Machnik said the enforcement action would continue if the applicant did not provide what the commission requested.
At the June 28 commission meeting, Attorney Geraghty submitted a planting plan prepared by Eric Davison, a wildlife biologist & certified professional wetland scientist with Davison Environmental, that included recommended species of about 80 plants as well as invasive control methods.
According to the minutes, commission member Gary Gregory stated that he was “very disappointed that the violations occurred despite discussions with the applicant, engineer and builder.”
Gregory said he wanted to require a bond to “ensure the work is completed correctly and as presented.”
Kim Groves, certified zoning enforcement technician for Old Lyme, said the commission could require a Soil and Erosion Bond that would be released when the project is complete and the commission inspects the area.
Attorney Geraghty stated “he would ask Davison Environmental for a cost of the project which would assist the commission in setting a bond amount.”
The commission agreed to table any action until its July 26 meeting.