Protect the Partrick Wetlands
and our Community

The Argument and Intervention to the proposal addressed to the Conservation Commission


In Re: Application of

ARS Partners, LLC for

The Reserve at Poplar Plains

#IWW, WPL 6874-02

_____________________________/                                                 October 16, 2002


Exhibit A


1. The South Eastern parcel of the subject property is located above an aquifer. The impact of the development on the wetlands could have an adverse effect on the aquifer and thus impact drinking water as well as down stream water. §7.6 of the Town of Westport Regulations for the Protection and Preservation of Wetlands and Watercourses allows for 85/100 setback under these circumstances. The use of this setback has not been adequately addressed nor has consideration for the Connecticut DEP’s desire to adopt more stringent setbacks above aquifers.


a. The Property is above an aquifer.

The ARS report, Appendix D Wetland Function-Value Evaluation Form VIII and IX both state that these areas are "located over stratified drift aquifer(s)." The Aber property surrounded by both VIII and IX clearly above the same aquifer. The wells of all surrounding neighbors and those of the nearby community are served by this aquifer. The conservation staff has presented a map which also confirms this. Houses 16-24 are above this aquifer.


b. CT DEP Wants to Extend Protection to more Aquifers

"The Connecticut Department of Environmental Protection (DEP), as part of its continuing effort to protect the state's drinking water resources, has released proposed aquifer protection land use regulations... The proposed regulations would increase protection for critical areas associated with Connecticut's highest yielding public water supply well fields (well fields in sand and gravel [stratified drift] aquifers . The DEP estimates that roughly 2% to 3% of the land area in Connecticut would be subject to these regulations." CT DEP



Section 22a-354i-4. Extension of Aquifer Protection Area Boundaries for Administrative Purposes; Approval

            (a) (1) A municipal agency may, for the purpose of clarifying the location of an aquifer protection area and facilitating administration of regulations pertaining thereto, submit a written request to the Commissioner to extend an aquifer protection area boundary approved by the Commissioner under 22a-354d to coincide with the nearest property line, municipal boundary, or topographic feature. Such proposed extension shall, at a minimum, fully encompass the aquifer protection areas bounded by the approved Level A mapping but shall not exceed the distance necessary to clarify the location of the aquifer protection area. An aquifer protection area boundary may not be extended without prior written approval of the Commissioner."CT DEP


c. Stay the grant of any permit until the CT DEP fulfills its goal.

Once the DEP rules are accepted this project would run afoul of it and be rejected by the board. Any acceptance now would fly in the face of reason.


d. Use of the 100/85' setback above an aquifer applies here.


"7.6 If the wetlands and Watercourses are located on an aquifer, a set back of 100'/85' may be required"

Regs for the protection and preservation of wetlands and waterways, Westport, CT.


These regulations were invoked to create the 45' wetland setback on some houses under the first proposal. Why was it used if the commission didn’t feel the aquifer needed protection. And since it was utilized why wasn’t it used on all houses above the aquifer. Why was 45' feet decided upon and the 85' prescribed by the regulations?


e. 100' set back has been used. There is precedence.

"In addition, as per Section 7.6 of the Inland Wetlands and Watercourses Regulations, the Commission may require a setback up to 100' from wetlands in areas that are located on an aquifer as is this property. In the past, the Conservation Commission has approved an equivalent setback at 31 & 35 Coleytown Road (# IWW 4603-92) and on Newtown Tumpike/Heron Lake Lane (#IWW 2173-87) that were also underlain by aquifers. Therefore, there is precedence on record for using a larger setback if the Commission finds it necessary in order to protect wetland systems that is also substantiated by DEP policy." Conservation Staff report #2.


2. The South Eastern parcel of the property supports a diverse wildlife population. These species utilize not just the wetlands and watercourses, but the uplands as well, creating a well balanced and utilized ecosystem. The loss of these uplands will result in the permanent loss of this varied and needed habitat. As such, development in the upland area may have a significant negative impact, not only on the wetland or watercourses resources but the resources’ habitat as well. Note: Poplar Brook creates a barrier for many species and this specific parcel of land is its own ecological environment. The destruction of the upland on this particular section of the property is not ameliorated by preservation of upland on the other side of the brook. Upland review areas are needed.


a. This commission has jurisdiction over vernal pools and the uplands near them

"IWWCs have jurisdiction over all activities that affect a vernal pool. (CT Sup court, Lewis A Lizzotte, et al v Conservation Commission of the Town of Sommers et al and again in Reid vs Town of Hebron, Conservation Commission) Although 80 percent of IWWCs exercise jurisdiction over the upland area, the extent of their review varies considerably between commissions, with upland review areas ranging from 25 to 650 feet... Some commissions have established large upland review areas to expand their regulatory authority. This enables the IWWC to review most land-use proposals."


"Inland Wetlands and Watercourses Commissions, Conservation Commissions, and Planning and Zoning Commissions. These groups have the ability to accept, reject, or modify development proposals that impinge upon wetland areas or their adjoining buffers." - Here today gone Tomorrow? Connecticut's vernal Pool. Center for Coastal and Watershed Systems Yale University.

                        b. Upland Review Areas are backed by the State

Conn. Gen Stat. §22a-42a (f) permits a wetlands agency to regulate activities outside wetland and watercourses if those activities are likely to impact or affect wetlands and watercourses.


c. Upland is needed to support the ecosystem

"Vernal pools fall under the protection of wetlands regulations, but the biology of the organisms in the pools is very tightly tied to that of the surrounding upland areas that extend hundreds of feet from the vernal pool itself." Geofrey Hammerson Ph.D. Wesleyan University


William Root, Milone & MacBroom Report agrees.

"An understanding of the ecology of vernal pools is rapidly emerging. What is becoming more and more clear is that it is the interrelated nature of multiple pools with adjoining wetland and upland habitat creates the landscape mosaic needed to sustain populations of dependent species."


"Fragmentation of upland habitat...Impedes migration; reduces available upland habitat; [with] Increased likelihood of local species extirpation (extermination)."

- Here today gone Tomorrow? Connecticut's vernal Pool. Center for Coastal and Watershed Systems Yale University.


d. The ARS report does not show protection of the uplands.

The (ARS) report does not discuss the ecology of the site linking the vernal pools, ephemeral pools, ponds, riparian areas, wet meadows, upland woodlands, etc. Especially, it does not discuss how the proposed development will preserve such links or mitigate from fragmenting them.

William Root, Milone & MacBroom Report

                        e. Uplands are many animals' habitat.

Page 7 of the ARS report lists many of the animals that will be affected by the destruction of their habitat. Coyote, weasel, woodchuck, fox, mink and more.


Coyote -"wetland fringes are particularly valuable." CT DEP

Eastern Striped Skunk - "Fields, fencerows, wooded ravines and rocky outcrops." CT DEP

Red Fox - "Red foxes hold territories... in woodland areas" - Wild Encounters

Grey Fox - "Grey fox prefers more densely wooded areas than the red" - Wild Encounters

Woodchuck -" Woodchucks occur in the mixed-wood" - Wild Encounters

Long-tailed weasel - "lives in a wide-variety of habitats including woodlands, thickets...It usually lives near a water source." - Wild Encounters


f. Most of the upland is being destroyed by this development, especially in the South Eastern section.


William Root, Milone & MacBroom Report agrees.

P5. Gr 3 - "Relatively little accessible upland remains undisturbed under this development proposal." (all throughout Root's analysis upland has been neglected)


"Although most of the wetlands are preserved, relatively little uplands are left undisturbed. Therefore, the question the Commission is obligated to address is whether current setbacks provide adequate upland area to sustain wetland systems or whether additional upland area may need to be considered." Conservation staff report #2.


g. The uplands are needed.

William Root, Milone & MacBroom Report continues.

P 6. Gr 3 - His notes (Rachovansky) on the need for an upland habitat component adjacent to wetland systems which provide needed habitat for facultative species are very important in this application.


h. Balanced amount of upland is the best solution.


Having all the upland on the western section of this property leaves the habitat to the South East in jeopardy.


Wildlife Conservancy says - "Upland habitats are extremely sensitive when surrounded by roads, waterways or other physical obstructions."


They go on to say -. with the destruction of these upland areas, "there is no guarantee that a successful repopulation would occur within or outside this habitat."


i. CT DEP wants to increase Upland review area to 100':

            William Root, Milone & MacBroom Report agrees.

CT DEP's Inland Fisheries Division argues strongly for 100 feet of undisturbed buffer in its 1991 Policy Statement.


"Municipal Wetland Regulations. Wetland agencies implement the Act through regulations which must conform with the statutes and DEP regulations. Approximately 70% of Connecticut's wetland agencies have adopted regulations governing construction activities located in upland areas surrounding wetlands and watercourses. These regulations are known as upland review area, buffer or setback regulations depending on the town. Both the width of the upland review area and the type of upland construction activities which require a permit vary widely from town-to-town. DEP is developing guidelines for regulations for wetland agency review of activities in upland review areas."



j. Other Towns are more progressive and are adhering to the new CT DEP ideas


1. Cromwell CT

"Upland Review Area" means land within one hundred feet of the boundary of any wetlands or watercourse, and within two hundred feet of the ordinary high water mark of the Connecticut River, Mattabasset River, Chestnut Brook, Willow Brook and Coles Brook, and within two hundred feet of any vernal pool indicated on the set of maps entitled "Inland Wetlands & Watercourses Map.""

Cromwell Conservation Commission

                        2. East Lyme

"The Town of East Lyme Conservation Commission regulates all activities within 100 feet of an inland wetland or waterway. The 100 foot area is called the upland review area and serves as a means of monitoring activities occurring in the vicinity of wetlands or watercourses."

Town of East Lyme Conservation Commission


3. Studies show this land is contaminated with arsenic and other harmful chemicals. There is a great risk of harm not just to the animal habitat, but to the groundwater, the aquifer, current neighbors and future inhabitants if this land is disturbed. More studies are needed to determine whether this land is safe for public use. The Marley report clearly outlines the dangers that are within that soil. It would not be prudent to approve this application with such unanswered questions.


The Marley report outlines quite clearly the chemical contamination exists on the site. Even if tons of soil were removed more studying needs to be done before any proposal should be accepted.

In this commission’s report former house 17-19 were denied basements because of the possible spread of contamination if blasting was allowed. Now ARS seeks to dig, the same contaminants are there and will be disturbed.


4. Alternative proposals for this property have not been adequately investigated. Of the 10 submitted only 2 proposed development in the southern section for houses 30 & 31 now 23 & 24. The other 8 have merits and need to be investigated openly.


Of the 10 other plans, which don't use septic which the OSRD regs forbid, only one uses this piece of land. 9 other proposals leave this land for the animals and the environment.


Alternatives submitted with the first proposal mostly ranged between 22 and 35 units with the exception of one 16 unit design and one 30 unit design with 15 building structures. Although the number of units ranged between 22-35, the direct impact to wetland systems were similar. For many of these designs the upland peninsula was left undisturbed in the southeast section of the parcel. Most designs that ranged between 29-31 were relatively similar except for the upland at the southeastern section which was left undisturbed. - Conservation staff report #2.


Therefore the commission could accept a different proposal and leave this upland undisturbed for all the reasons already stated and more to come.


5. The lack of justification for the non-universal implementation of the 45' wetland setback created for specific houses in this proposal will have an adverse effect on the aquifer, wetlands, watercourses and uplands.


a. The creation of the 45' setback was an excellent idea, but it should have been applied to all houses.

                        b. Justification can be found in a letter from your consultant Tom Rochovansky.


Letter dated 1/28/02, by T. Rochovansky indicates the following:


Setbacks: I continue to believe that the proposed setbacks in this plan are not adequate to reduce impacts to wildlife and aquatic systems. Fifty to seventy five feet of totally undisturbed, naturally vegetated wetland setbacks and buffers throughout the project would be best. Reducing the number of units, removing all disturbance in wetland areas, and sticking to a more appropriate setback distance would go a long way in addressing the concerns for maintaining habitat quality.”

                        c. Work session discussions did not justify not applying the setback to all.

Two commissioners asked for it to be extended, but were rebuffed without open discussion. When specifically asked about former house 30 & 31 now 23 &24 the comment made was “they are close to the road.” But former houses 21 and 27 are both closer to the road than former house 31 and they were given the 45' setback. So what could possibly have been the reason for not giving at least house 31 this greater setback?

                        d. §7.6 was used to create this 45' setback it should have been for all.

The use of §7.6 of the Town of Westport Regulations for the Protection and Preservation of Wetlands and Watercourses to create the 45' setback for some houses was inventive. But since it was used, why not for at least all the houses over the aquifer. If the only justification for use of §7.6 is that the aquifer would be effected , all houses over the aquifer should have this setback applied. Anything less would be not make sense.


This commission has tacitly said the aquifer will be harmed by this proposal. This commission needs to step up and apply this setback evenly to protect it citizens.


6. The lack of utilization of the 65' wetland setback for multi-family units will have an adverse effect on the wetlands, watercourses and uplands.


Use of the 65' setback for a multi-family situation should be applied.

"This is a clustered development and could be possibly likened to a multi-family community which requires a 65' setback." Conservation Staff Report #1


Since homes are only 24' apart, closer than some garages to houses in Westport, and are being jammed together, a multiple family situation is occurring. The reason for the 65' setback in this case is to offset the greater density of the situation. The difference between a two family house and two houses 24' apart is minuscule and thus the greater setback is warranted. The OSRD regs are creating this denser situation near the wetlands and an answer just as innovative as the use 7.6 to create the 45' should be used here.


7. Use of the 35' setback amid this higher density will have an adverse effect on the wetlands, watercourses and uplands.


a. 35' is an arbitrary number, an outmoded number, which has been used by

Westport for years. It is time for a change. The CT DEP has been suggesting that it be increased to 100'. Westport should now follow suit.


b. The 35' setback is not enough in this case due to the OSRD's higher density.

The 35' setback was set up for single family houses within normal zoning parameters, 1,2 acres. The OSRD allows multiple houses within a smaller area, thus creating a greater impact on the land, the environment and the wetlands.


Note: It is not the relationship with these houses to the overall size of the land that is at issue. It is the relationship of the houses to each other and to their specific impact area. Saying the OSRD offsets this is just not the case. The OSRD actually creates the density which needs to be ameliorated.


c. There is precedence to use a larger setback.

"In the past, the Conservation Commission has approved [ a 100' ] setback at 31 & 35 Coleytown Road (# IWW 4603-92) and on Newtown Turnpike/Heron Lake Lane (#IWW 2173-87) that were also underlain by aquifers. Therefore, there is precedence on record for using a larger setback if the Commission finds it necessary in order to protect wetland systems that is also substantiated by DEP policy." Conservation Staff report #2.


8. The lack of any study of the surrounding and/or adjacent properties in relation to the their and this wetland is unjustified and needs to be rectified. The impacts of development on these adjacent and linked wetlands and ecosystems are unknown and need to be ascertained prior to approval of this proposal.


The ARS studies and the Commission’s studies do not cover adjacent properties. Water and animals don't see boundary lines or fences. Studies of neighboring properties needs to be done to understand the full impact of this development.


What animals that live across the border and will they be effected by the loss of upland? The Aber property has no upland, and neither do the properties to the west. The only upland near it is the land proposed to have two houses, houses 23 & 24. How will destroying the only upland in the area affect an ecosystem which is completely linked to it and dependant upon it?

            More studying must be done.


9. The Integrated Pest Management Plan and the By-laws associated with this development are unmanageable and overtime could be disregarded by the future inhabitants. At jeopardy will be the entire wetlands, the ecosystem and the aquifer


a. There will be no respect for the wetland boundaries by the inhabitants, and no policing.


The owners will get out of hand. They will want to expand and will create their own environment. They will use different landscapers and management groups to the detriment of the wetlands. They will use fertilizers, and insecticides on the very prevalent mosquitoes within the proximity to the wetlands.


1. There will be no one to police them other than the town, which will not be able to catch all the infractions.


2. This is not the same as normal housing.

ARS is creating extra density by using the OSRD rules to cram houses close together and in tight to the wetlands. The houses do not have any space and the people will crave it. A strange juxtaposition. They will have huge amounts of open space yet won't be able to utilize it. It will tantalize them and drive them to run afoul of any rules laid out.


3. ARS will just walk away and the town and its citizens will be left holding the bag.


" Mr. Root discusses...the availability of space behind the single family units. The Commission must review any proposal that falls within regulatory setbacks. By providing only a 35' setback for the structures with no room for expansion will guarantee further review by the Commission for requests, such as a pool, deck or patio for almost every unit on the plan. Conservation Staff Report #2.


Therefore a larger setback would be warranted to offset abuses that will occur. In addition to the increased setback, I'd also suggest having ARS put up a $1.5 million bond, equal to the price of one house, to cover any expenses the town might incur.


10. The proposed site development to the South East of Poplar Plains Brook is too intensive for that section of the site and will adversely impact the fragile wetland resources on that side of the site.


This area is its own ecosystem, separated by the brook. It has limited uplands and most will be destroyed by this proposal. The OSRD fails in this respect and reliance on it by allowing the larger upland and wetlands on the other side of the brook into the calculations is not acceptable or prudent. This side of the land needs to be looked at as its own entity. It is fed by Old Hill and has its own character and habitat. To allow what essentially is a massive intrusion on this separate section of this property will have devastating effects on the wetlands and the habits within it..



11. Failure to adhere to the findings of experts hired by this commission will adversely impact the wetland and the ecosystem.


This commission hired outside consultants to review this proposal and even included their comments in their findings. Yet the commission chose to disregard them.


Letter dated 1/28/02, last paragraphs by T. Rochovansky indicates the following: “Loss of uplands: My previously stated concerns for the loss of the critical upland component to the adjacent wetland systems continues with the new plan. The loss of this habitat and connective wildlife corridors will have a deleterious impact on wildlife and the diversity of the site. The large areas of undisturbed habitat are wetland areas, and very little upland habitat is preserved or accessible on this plan.


Setbacks: I continue to believe that the proposed setbacks in this plan are not adequate to reduce impacts to wildlife and aquatic systems. Fifty to seventy five feet of totally undisturbed, naturally vegetated wetland setbacks and buffers throughout the project would be best. Reducing the number of units, removing all disturbance in wetland areas, and sticking to a more appropriate setback distance would go a long way in addressing the concerns for maintaining habitat quality.”


This is the conservation commission, not the development commission and your charge is clear protect the wetlands and its environment at all costs.


12. Houses 23 & 24 (former 30 & 31) pose a specific detrimental impact to the aquifer, upland and wetlands ecosystem.


Former Houses 30 & 31 now 23 & 24 are being squeezed into a piece of land that can't support any houses, especially with a growing watercourse and the wetland encroaching.


a. The upland is too small because it is surrounded by wetlands.

The width of this tiny peninsula between the wetlands is about 140' and where there are proposed structures it is only 100'. It is clearly not big enough to support these houses. The wetland is not one side or even two, but one three and is clearly an inappropriate place to have houses.


b. These houses are an attempt to use the OSRD zoning to cram out of character houses into an existing community. Squeezing these houses in to maximize profit at the expense of the environment. House 24's Northwestern corner is on the setback line, the Northeastern corner is 5 feet from the setback and the Southeastern section is near the setback. House 30's Western side is on the setback line.


c. The spit of upland can't support any houses, they will impact adversely on the wetlands. ARS obviously has no respect for the environment or the people who they will sell these houses to. There is no backyard, no front yard, no place for children to play. The owners will crave land and ignore the IPM.


William Root, Milone & MacBroom Report agrees.

"P 7 Gr 3. Let me cite a few areas proposed for development which pose a threat to wetlands and watercourses either directly or indirectly. Although discussed separately, these areas are linked by the sites hydrology and existing vegetative communities.


P9 gr 6 "9. As in other areas of the development, the units here press close to the wetlands - generally about 40 feet, and the architectural renderings show details and accoutrements not included on the site plans, as discussed previously, Landscaping will likely extend to the wetland boundary itself ... Little if any undisturbed upland buffer appears to be left intact, As discussed throughout, CT DEP's Inland Fisheries Division argues strongly for 100 feet of undisturbed buffer in its 1991 Policy Statement.


Root Continues.

P11 gr 2. Units 30 and 31...present the same threats of indirect impacts discussed above.

This statement specifically gives reason to justify the 45' setback that used for other houses.


e. The running of the sewer line in the shoulder and under Partrick road to service houses 23 and 24 is a poor proposal. What if it breaks or leaks, who will be responsible, the owners, ARS or the town? What impact will a catastrophe like this cause on the wetlands and the aquifer. And I will again state for the record that his "underground sewerage disposal system" is not 50' from the wetland.

             d. The wetland is growing.

The culvert installed by the town has flooded the area. The increase of houses on Old Hill has flooded the area. A watercourse flowing north to Poplar Brook along the border of our properties is growing towards the south. Over time it will flood back within the setback of houses 23 and 24 as well as ours. The watercourse itself is 80' from house 31.


1. It is too close now. "CT DEP's Inland Fisheries Division argues strongly for 100 feet of undisturbed buffer in its 1991 Policy Statement.". Root


2. The commission can rule on future wetlands.

"3.17 "Regulated areas" means both "Wetlands" and all "Watercourses," existing and future, not all of which may be specifically delineated at present." The wetlands are expanding and it would be foolish to approve houses that in the future will be inside the wetlands and not just the current setback..


3. The area needs to be studied since ARS and this commission did not.

             e. The flooding will only get worse with the construction of the houses.

"6.5 Discharge and runoff:

In order to determine that an activity will not have significant impact or major effect on the flooding habits of Wetlands and Watercourses, the Commission shall, as applicable, find that:

(a) The potential for flood damage on adjacent or adjoining properties will not be increased;"

Regs for the protection and preservation of wetlands and waterways, Westport, CT.


f. Animals on our property and that of our neighbors will be harmed. No study of our land for habitats was done. Our land is intertwined with theirs. Animals don't understand borders or fences. The impact from the destruction of the upland in such close proximity needs to be studied. This upland is the only upland in the area and it destruction will be devastating.


g. House 24's driveway is not 25' feet from the wetland and thus is in violation of the current setback. In this new proposal the new house 24's driveway was moved further into the setback and a new turnaround is completely in the setback. Gravel or porous, it should not be allowed especially because they are taking advantage of your generosity.


h. 31 basement under the water line.

William Root, Milone & MacBroom Report 12/14/01

"The outlets for the footing drains should be shown on the plans. Basements for Units 1-6 and 31 will be below or near the estimated groundwater elevation. The footing drains for theses units will probably have to outlet near or in the wetlands".


i. Who will monitor the owners actions? They are not part of the larger communities they will do what they want and run roughshod over the wetlands. They will pollute with chemicals and no one will be able to stop them.


j. These houses should at least be given the 45' setback that other houses were given. There is no reason they shouldn’t, I’d argue they deserve them more.


k. These houses are over the aquifer and the 85/100' set back should be used. If used they'd have negative 40 feet to build the houses on. Obviously there is no room for these houses.


l. The upland they are on is the only upland in the area. Tied to the wetlands on both this property and that of the surrounding area. The destruction of this upland will destroy a wonderful natural habitat..

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