Reasons to Deny the Development Proposal at 541 Middle Turnpike, Mansfield, CT

Based on the testimony and documents of record involving Mansfield Wetland Permit Application W-1631, for a proposed development at 541 Middle Turnpike, Mansfield, CT, the applicant fails to comply with the inland wetlands regulations of the town of Mansfield for the following reasons:

1. Extremely High Level of Impervious Cover in Upland Review Area: The applicant proposes to construct 89 dwelling units on approximately 7.57 acres of the 24.61 acre parcel located 541 Middle Turnpike, Mansfield, CT. A total of 49 of the 60 buildings proposed will be completely or partially within the 150 foot upland review area established by the Mansfield Inland Wetlands Agency. The proposed site plan creates impervious coverage ranging from 39% to 53% depending upon whether the upland review area is included in the calculations of the developable land area (See reference for the 39% impervious cover found on digital page 144 of the Bohler Drainage Report dated 9/14/2023).  However, the difference in these calculations has no bearing on determining if the proposed development will have a significant impact on the water quality of the Cedar Swamp Brook. Testimony provided by Charles Vidich at the public hearing for application W-1631 held on December 18, 2023 indicated impervious cover exceeding 25% can significantly degrade water quality – specifically causing excessive discharges of phosphorus, nitrogen and total suspended particulates (Vidich testimony December 18, 2023). Impervious cover exceeding 25% is inconsistent with Mansfield’s legal obligations to require low impact development for new construction under the Municipal Separate Storm Sewer System General Permit (MS4) issued by the Connecticut Department of Energy and Environmental Protection, dated October 2023. The MS4 General Permit governs stormwater management proposals subject to Mansfield Inland Wetlands Agency regulations. The applicant has the burden of proving there will not be any indirect impacts to wetlands from the proposed 39% impervious land cover for the developable land at 541 Middle Turnpike. The applicant has not done so.

2. Failure to Address Likely Increase of Thermal Stress on the Cedar Swamp Brook and its Impact on Aquatic Life: The applicant failed to conduct baseline water quality sampling of Cedar Swamp Brook. Without water quality sampling data the applicant has not demonstrated it can protect the Class A surface water classification of the Cedar Swamp Brook as a potential drinking water resource for Mansfield. This concern was also raised by the Mansfield Conservation Commission at its May 17, 2023 meeting concerning application W-1631. The Conservation Commission recommended the Mansfield Inlands Wetlands Agency “…consider baseline measurements, sampling, and analysis of water quality, which facilitates assessing changes in wetland function and values after construction is complete.” Furthermore, John Silander, PhD. testified in a report dated December 8, 2023 to the Mansfield Inland Wetlands Agency; “One of the main impacts of the development on the streams and associated wetlands is likely to be thermal stress, as a consequence of forest clearings along with dense development of buildings and paved surfaces.” He further stated: “The native brook trout that do occur in Cedar Swamp Brook are dependent on cold water streams fed by headwater springs and seeps. As reported in the ERT 2009 report, CT-DEP Fisheries Division (IFD) conducted an electrofishing survey of the Cedar Swamp Brook [above Pink Ravine] and found it “…to support a cold-water fish community comprised of: fallfish, white sucker, common shiner, blacknose dace and native brook trout.” The DEEP has characterized these cold headwater stream systems and associated seeps and springs as one of Connecticut’s most imperiled ecosystems (Metzler and Wagner 1998, CT-DEEP 2015).” The applicant failed to address the likely increase of thermal stress on the Cedar Swamp Brook and its impact on aquatic life identified by Dr. Silander in his report. The applicant has the burden of proving there will not be any indirect adverse impacts to the Class A water quality classification of the Cedar Swamp Brook or its cold water stream status from the development proposed within less than 50 feet of the wetland and brook located on 541 Middle Turnpike. The applicant has not done so.

3. Failure to Conduct Field Survey in NDDB Area to Identify Critical Habitat: The applicant failed to conduct a field survey to identify the presence of critical habitat on the 24.61 acre site. Specifically the applicant failed to reference the most up to date online Natural Diversity Data Base Areas found on the CTECO Interactive Map Viewer which identified significant portions of the site as falling within the Natural Diversity Data Base Area. An onsite biological assessment of the parcel was therefore warranted. The applicant has the burden of proving the proposed development will not have any direct or indirect impacts to wetlands or the habitats of terrestrial, aquatic or avian species that reside at 541 Middle Turnpike. The applicant has not done so.

4. Failure to Disclose Application Falls within a Natural Diversity Data Base (NDDB) Area: Snapping turtles exist on the 541 Middle Turnpike site according to a sworn affidavit submitted by William Paulson. The applicant failed to conduct an onsite survey of the habitats of terrestrial, aquatic and avian species including snapping turtles. The Paulson affidavit confirms the habitat of nesting snapping turtles at various locations on 541 Middle Turnpike. These nesting sites cannot be disturbed without the approval of the Connecticut Department of Environmental Protection. Conducting an NDDB site inventory is recommended by the Connecticut Council on Environmental Quality and should be conducted based on the more accurate NDDB area identified by the ECO Interactive Map Viewer. Wetland application W-1631 fails to comply with the intent of the Mansfield Inland Wetlands regulations set forth in Section 7.5.H. Conditioning approval of this project on the completion of a biological assessment of the known (i.e., snapping turtles) and other potential species of concern would be inconsistent with the Mansfield Inland Wetlands regulations Section 7.5 H.  Section 7.5.H. requires “A CT DEEP Diversity Data Base Program Review if the location of the proposed activity is within a Natural Diversity Data Base Area.” Species might have been identified if an onsite biological assessment had been completed consistent with the more precise CTECO Interactive Map Viewer referenced in the bottom lower left corner of the applicant’s map titled “NDDB Areas for Mansfield, CT, dated December 2022.” The NDDB map for Mansfield was submitted to the Inland Wetlands Agency on June 5, 2023. The NDDB map submitted on June 5, 2023 specifically instructs map users as follows: “Use the CTECO Interactive Map Viewers http://cteco.uconn.edu to more precisely search for and locate a site to view aerial imagery and NDDB Area.” (Compare Attachment A (the NDDB Area for Mansfield) to Attachment B (the more precise NDDB Area impacting 555 Middle Turnpike). The comparison reveals the applicant failed to complete the required more precise due diligence investigation of critical habitat areas on the property. Since the applicant failed to use the most up to date Natural Diversity Data Base, a tool labeled to “more precisely search” the existence of NDDB areas, the applicant failed to disclose that much of the site falls within a designated NDDB Area. In those circumstances, a simple review of the NDDB is inadequate to determine the existence of critical habitat without an onsite field inspection. Mr. Paulson’s sworn affidavit confirms the need for a complete biological assessment of the property – an investigation that must precede any action on this application. Lacking this field survey, the application does not meet the requirements of Section 7.5H of the Mansfield Inland Wetlands regulations. The applicant has the burden of proving the proposed development will not have any direct or indirect impacts to the habitats of terrestrial, aquatic or avian species that reside within the wetlands and uplands at 541 Middle Turnpike. The applicant has not done so.

5. Inaccurate, Deceptive or Incomplete NDDB Data Provided to Agency: The Mansfield Inland Wetlands regulations, Section 11.10 General provisions in the issuance of all permits, state: “The Agency has relied in whole or in part on information provided by the applicant and if such information subsequently proves to be false, deceptive, incomplete or inaccurate, the permit may be modified, suspended or revoked at the Agency’s discretion.” As discussed in Sections 3 and 4 above, the applicant has inaccurately, incompletely or deceptively described the Natural Diversity Data Base Area on the property resulting in a false presentation of the habitats for snapping turtles and potentially others species that might be identified if a biological assessment had been completed consistent with the more precise CTECO Interactive Map Viewer as noted in the applicant’s map titled “NDDB Areas for Mansfield, CT, dated December 2022” and submitted to the Inland Wetlands Agency on June 5, 2023. The applicant has the burden of proving the proposed development will not have any direct or indirect impacts to wetlands or the habitats of terrestrial, aquatic or avian species that reside at 541 Middle Turnpike. The applicant has not done so.

6. Failure to Identify Unique Wetlands Functions and Values on Site: The applicant failed to provide an accurate analysis of the functions and values of the Cedar Swamp Brook and its attendant wetlands. No mention is made of its Class A water quality classification indicating its potential for drinking water use consistent with its previous function as a tributary to the University of Connecticut and Mansfield Training School’s drinking water reservoir that served the university and the training school from 1920 to 1926 and remains one of the most important water resources to meet the town of Mansfield’s future drinking water needs. In addition, Dr. Silander noted in written testimony submitted to the Mansfield Inland Wetland Agency on December 8, 2023, “…there has apparently been no attempt by the developers to assess the current water quality of Cedar Swamp Brook as it passes through the property, other than stating without supporting currently measured data that ‘The proposed development improves water quality.’ In addition, the wetlands report submitted by the developer makes no mention of the unique wetland attributes of the sites: i.e., that it contains cold headwater seeps and springs identified by DEEP as one of the most imperiled ecosystems in Connecticut (cf. Metzler and Wagner 1998, CT-DEEP 2015), and that these wetlands feed into a class A cold water stream: Cedar Swamp Brook. Nor are these important wetlands attributes considered in the applicant’s wetlands functions and values assessment.” Dr. Silander’s expert testimony has not been contradicted by the applicant. The applicant has the burden of proving there will not be any indirect adverse impacts to the Class A water quality classification of the Cedar Swamp Brook or its cold water stream status from development proposed within less than 50 feet of the wetlands and brook located on 541 Middle Turnpike. The applicant has not done so.

7. Significant Wetlands Impacts Will Occur and No Feasible or Prudent Alternatives Were Considered: The Mansfield Inland Wetlands regulations state under Section 10.3:  “In the case of an application which received a public hearing pursuant to a finding by the Agency that the proposed activity may have a significant impact on wetlands or watercourses, a permit shall not be issued unless the Agency finds on the basis of the record that a feasible and prudent alternative does not exist.” The Mansfield Inland Wetlands Agency has a held a public hearing on this application with extensions granted on several occasions. Despite the extensions provided, the applicant has failed to offer feasible and prudent alternatives that would avoid indirect impacts to the water quality of the Cedar Swamp Brook and direct impacts to protected habitats of snapping turtles and other species that should have been identified if the applicant had conducted a biological assessment of the 24.61 acre parcel. The applicant, by placing 80% of the buildings in the upland review area will significantly affect the following 1) the habitat of the snapping turtles which have not yet been inventoried; 2) the water quality of the Cedar Swamp Brook, which was not sampled to determine baseline conditions to ensure its Class A water quality classification, can be maintained in perpetuity; and 3) the ability of the upland review area to function as a riparian buffer to reduce discharges of phosphorus, nitrogen and total suspended particulates. Furthermore, the applicant failed to explain how its stormwater management plan would reduce toxic pollutants associated with vehicle emissions, leaking oil, hazardous materials and soluble chemicals not detained by stormwater retention or detention technologies. These pollutants may be used or consumed on the proposed site and the applicant has not addressed how these substances would be controlled. Cedar Swamp Brook is a pristine water resource and any impacts to its water quality classification represent significant impacts. The applicant has asserted the proposed development will have minor impacts and therefore believes the feasible and prudent alternatives analysis is not applicable. This assertion is not supported by the verbal testimony provided on December 18, 2023 by Dr. Silander, Charles Vidich and William Paulson including the extensive scientific evidence these individuals submitted confirming 1) the significant adverse impacts to water quality, 2) the negative consequences of elimination of the riparian buffer’s “water pollution control function”, and 3) the potential elimination of the protected snapping turtle habitats known to exist on the site. Written testimony provided by Attorney John Parks in his December 18, 2023 “Compliance with Regulations” document states: “feasible and prudent alternatives exist which do not affect wetlands, Cedar Swamp Brook, the flood storage capacities of the Cedar Swamp Brook watershed or feasible development options that are consistent with the carrying capacity of the land. The riparian buffer zone has been transformed into a development zone creating irreplaceable buffer zones that protect the water quality of the brook.” The applicant has the burden of proving there will not be any indirect adverse impacts to the Cedar Swamp Brook or the pollution attenuation function of the riparian buffer when development is proposed to take place within less than 50 feet of the wetland and brook. The applicant has not done so.

8. Feasible and Prudent Alternatives Were Offered but Not Considered: The Mansfield Inland Wetlands Agency regulations state in Section 10.4: “In the case of an application which is denied on the basis of a finding that there may be feasible and prudent alternatives to the proposed regulated activity which have less adverse impact on wetlands or watercourses, the Agency shall propose on the record in writing the types of alternatives which the applicant may investigate, provided this subsection shall not be construed to shift the burden from the applicant to prove that he is entitled to the permit or to present alternatives to the proposed regulated activity.” Consistent with this requirement, the applicant failed to provide a development proposal that would avoid any development within the upland review area so as to protect its purpose as a riparian buffer. LandTech asserted the alternatives deemed feasible or prudent were driven by the Inland Wetlands Agency’s desire for affordable housing and not by its obligations to protect wetland resources (see LandTech’s critique of the application submitted to Jennifer Kaufman, dated December 13, 2023, pp. 22-25). Regardless of the underlying motive for LandTech’s remarks, there is a high degree of confidence that the developer will significantly impact the physical and chemical characteristics of the wetlands and watercourses within the 24.61 acre parcel and downgradient stretches of the Cedar Swamp Brook. These impacts can be avoided by dramatically reducing the development proposal to land falling outside the upland review area. This would require a scaled down density of development that the applicant has been unwilling to consider.  Economic considerations are not the basis for rejecting what are considered feasible and prudent alternatives. The applicant’s proposed development plan would create significant offsite impacts to wetlands and the Cedar Swamp Brook by turning a regulated area into a development zone. In numerous locations, the proposed building development falls within 40 feet of the Cedar Swamp Brook and its wetlands. Furthermore, stormwater construction activities involving the creation of detention basins and below ground infiltration basins will impact areas even closer to these protected resources. Wetland protection is the primary purpose of inland wetland regulations. Its purpose is not to achieve the maximum economic benefit from a development proposal. Absent a finding of an adverse impact the commission cannot consider, or require an applicant to submit, feasible and prudent alternatives to the proposal (see Patchen v. Milford Inland Wetlands Agency, 2015 WL 1244327 (Feb. 25, 2015). However, both LandTech and the intervenor, Mansfield Environmental Trust – represented by Attorney John Parks – have demonstrated there will be adverse impacts to the wetlands from overdevelopment within the 150 foot upland review area. The upland review area represents a riparian buffer zone that has been well documented through extensive scientific research to protect the functions and values of wetlands and watercourses. Riparian buffers provide robust water quality protection functions for dramatically reducing nutrients such as phosphorus and nitrogen when buffers of 100 to 150 feet are maintained free of development and impervious cover. The value of the riparian buffer will be severely compromised by the excessive impervious cover proposed by the applicant – representing at least 39% of the developable area of the 24.61 acre parcel. The applicant has the burden of proving there will not be any indirect adverse impacts to the Cedar Swamp Brook or the pollution attenuation function of the riparian buffer when development is proposed to take place within less than 50 feet of the wetland and brook. The applicant has not done so.

9. Physical impacts to the Wetlands and Watercourse on Site: In accordance with the Mansfield Inland Wetlands regulation Section 10.6: “The Agency shall not deny or condition an application for a regulated activity in an area outside wetlands or watercourses on the basis of an impact or effect on aquatic, plant, or animal life unless such activity will likely impact or affect the physical characteristics of such wetlands or watercourses.” Lacking 1) baseline water quality sampling data, and 2) any evidence of a field delineation of the wetlands on the site, with flags to distinguish upland areas from wetlands, (see Mansfield Environmental Trust’s documents of record, submitted December 18, 2023), the applicant has not demonstrated where and how wetlands will be protected. Without baseline water quality sampling the applicant has not demonstrated how the Cedar Swamp Brook’s Class A water quality classification will be maintained nor have they provided an accurate wetland delineation with flags identifying the physical limits of the wetlands and watercourses onsite. The 2020 wetlands survey, if it exists, is not part of the public record and is not delineated on the property located at 541 Middle Turnpike. How can it represent a precise delineation of the wetlands when there are no wetland flags on site to confirm the wetland boundaries? The applicant’s proposal is inconsistent with Section 7.5 C which requires “Mapping of soil types consistent with the categories established by the National Cooperative Soil Survey of the U.S. Natural Resources Conservation Service; the wetlands shall be delineated in the field by a soil scientist and the soil scientist’s field delineation shall be depicted on the plans.” The applicant has failed to delineate the wetlands on the property or failed to maintain the wetland flags, as evidenced by a lack of wetlands flags in the field according to testimony submitted on December 18, 2023 by Attorney John Parks. Without flags in the field, the applicant has failed to comply with the Mansfield Inland Wetlands regulations. Failure to maintain wetland flags on site can result in inadvertent filling or disturbance of wetland or watercourses on the parcel. A wetland delineation conducted in 2020 which no longer contains wetlands flags does not comply with the Mansfield Inland Wetlands regulations Sections 3.2 and 7.4.J and 7.5.C. The applicant has the burden of proving the proposed development will not have any direct or indirect impacts to delineated wetlands or watercourses. The applicant has not done so when wetland flags have been removed.

10. Stormwater Management System is based on Speculative Engineering Assumptions: The applicant has proposed a highly engineered stormwater collection system. However, the applicant has failed to provide an adequate analysis of the water storage capacity of the underlying soils on the 24.61 acre parcel and more specifically in the 10.27 acres designated for development. The stormwater controls proposed are based on an inadequate and non-representative level of soil tests to determine percolation rates. The actual stormwater discharges to the wetlands and the Cedar Swamp Brook are based on speculative assumptions that fail to consider 1) the existence of perched water tables underlying portions of the developable land, 2) the presence of clay soils in some areas that function to dramatically reduce percolation rates for the proposed buried infiltrations tanks that will not properly function during 24 hour 25 year, and 24 hour 50 year storms. Under these storm events, it is highly probable the stormwater system will fail to protect the wetlands and the Cedar Swamp Brook from physical, geomorphic damage from uncontrolled stormwater. Uncontrolled stormwater discharges can lead to the alteration of the physical contours of the wetlands and Cedar Swamp Brook. This occurs when stormwater discharges accelerate and/or alter fluvial geomorphic processes changing the shape, size or slope of the river bed. It is highly probable, the stormwater controls associated with the infiltration basins will be bypassed during peak stormwater runoffs especially without robust maintenance controls that have not been offered by the applicant. It is instructive to note that Mary G. Harper, the owner of property abutting 555 Middle Turnpike corroborated the high groundwater table in the area. Her May 9, 2023 report to the Mansfield Inland Wetlands Agency states: “My backyard and well are at a slightly higher elevation than 555 Middle Turnpike, and there are no wetlands on my 2-acre property, but the lot is of the same soil type as the lots at 555 and 541, meaning high perched water tables over glacial till that does not allow rain and groundwater to infiltrate well. I must point out that the Whitestone testing took place in October of 2022, the driest month of a year, and in a year of near historic drought, yet it still encountered high groundwater levels.” The applicant has the burden of proving there will not be any direct or indirect adverse stormwater impacts to the physical condition of Cedar Swamp Brook or its wetlands or any indirect impacts to the pollution attenuation function of the riparian buffer when proposed development takes place within less than 50 feet of the wetlands and brook during super-saturated soil conditions that overwhelm the proposed stormwater controls. The applicant has not done so.

11. Proposed Maintenance Intensive Stormwater System is Not Fool Proof Experts Assert: The LandTech staff testified at the December 18, 2023 public hearing that without routine maintenance of the stormwater controls infiltration basins may be overwhelmed with leaf litter and other obstructions that incapacitate water quality and water quantity stormwater controls. Lack of stormwater controls based on inaccurate or non-representative soil testing data is only part of the threat posed to the physical condition of the wetlands and Cedar Swamp Brook. In considering impacts to wetlands and watercourses presented by stormwater runoff, the commission need not establish standards by regulation, but may rely on expert testimony [See Three Levels Corp. v. Redding Conservation Comm'n, 148 Conn. App. 91 (2014]. At the December 18, 2023 public hearing, LandTech’s experts testified to the dangers of the proposed highly maintenance intensive stormwater system and its likelihood of failure. LandTech also testified that in their experience there is very little data to prove the effectiveness of highly engineered stormwater systems once they have been approved. Based on the expert testimony of Mr. Vidich and the evidence presented by Ms. Harper, it is highly probable the applicant’s stormwater management controls will NOT achieve the theoretical performance standards for percolation rates and long term discharge controls presented in their application. The applicant has the burden of proving there will not be any direct or indirect adverse stormwater impacts to the physical condition of Cedar Swamp Brook or its wetlands or any indirect impacts to the pollution attenuation function of the riparian buffer when proposed development takes place within less than 50 feet of the wetland and brook. The applicant has not done so.

12. Commission is not authorized to Condition an Inland Wetland Permit Approval Matter Outside its Statutory Authority: Application W-1631 fails to comply with the open space requirements of the Mansfield Zoning Regulations unless application W-1632 is also simultaneously approved. Under the DMR zoning regulations, application W-1631 must dedicate 40% of its parcel or 20 acres, whichever is greater, as open space. Since application W-1631 only proposes 17 acres of open space, it does not meet the minimum open space standards unless application W-1632 is simultaneously approved to provide the additional 3 acres.  The Connecticut General Statutes stipulate in § 22a-42a(d)1:” No person shall conduct any regulated activity within an inland wetland or watercourse which requires zoning or subdivision approval without first having obtained a valid certificate of zoning or subdivision approval, special permit, special exception or variance or other documentation establishing that the proposal complies with the zoning or subdivision requirements adopted by the municipality pursuant to chapters 124 to 126, inclusive, or any special act.” In this instance the applicant is proposing to develop housing in the DMR zone that will be out of compliance with its open space requirements if the Mansfield Inland Wetlands Agency fails to simultaneously approve application W-1632. The Inland Wetlands Agency does not have the authority to condition the approval of one application on the approval of another application. This predicament explains the applicant’s failure to evaluate feasible and prudent alternatives. There is an insufficient amount of land outside of areas identified as wetlands, watercourses, floodplains, steep slopes and upland review areas to meet zoning standards for open space. A total of 20 acres of open space cannot be achieved on a parcel with 24.61 acres of which only 10.27 acres is considered developable. The applicant’s open space requirement has triggered the misuse of the upland review area as a development zone. The Inland Wetlands Agency is not authorized to condition the approval of one application (i.e., application W-1631) on the simultaneous approval of an independent application (i.e., application W-1632). Such a conditional approval is not authorized by the Connecticut General Statutes nor by an Connecticut Supreme Court case law. For this reason, among the other reasons identified herein, application W-1631 is denied.

13. Application W-1631 is Inconsistent with Zoning Regulations: Prior to the submission of application W-1631, the Mansfield Planning and Zoning Commission established performance standards under Section 190-75, 8(b) [5] requiring, “Wherever feasible, buffers of undisturbed natural vegetation of 50 feet or more shall be retained along all watercourses and wetlands.”  Application W-1631 is not consistent with this zoning performance standard which is governed by Connecticut General Statutes § 22a-42a (d)1. The applicant (W-1631) can only comply with the minimum 20 acre open space standard if the Mansfield Inland Wetlands Agency simultaneously approves application W-1632 by providing missing 3 acres of open space. The Mansfield Inland Wetlands Agency has no regulations that authorize cross-conditional approvals between independent wetlands applications. For this reason, among the other reasons identified herein, application W-1631 is denied.

14. Misrepresentation of the 100 Year Floodplain Boundary: The applicant contends that a Letter of Map Amendment (LOMA) should be allowed as a condition for the approval of the proposed development. The LOMA would allow for a smaller 100 year floodplain zone on the property than currently shown on the 1981 Federal Emergency Management Agency (FEMA) delineation for Mansfield, Connecticut. Reducing the size of the floodplain is not supported by an evidence submitted by the applicant. Dr. Silander and Charles Vidich both testified the applicant’s proposed request for a LOMA from the town’s floodplain administrator is unsupported by scientific, hydrologic or the latest stormwater intensity data from the National  Oceanic and Atmospheric Administration (NOAA). Dr. Silander noted the Mansfield Floodplain map is “…based on very old FEMA map data referencing 100 year floods and do not take into account changing climate regimes with increased occurrences of extreme events.” His testimony was corroborated by Mr. Vidich who indicated any revisions of the 100 year floodplain boundaries require a watershed level analysis that must consider 1) changes to impervious cover, 2) alterations of hydrologic conditions within the watershed caused by development, and 3) the increasing intensity of storms attributable to a warming climate. Mr. Vidich indicated the applicant’s proposal requests a Letter of Map Amendment as a condition of approval. The applicant’s request would reduce the size of the floodplain on the 24.61 acre parcel without any scientific or evidentiary foundation for determining the boundaries of the 100 year floodplain. Vidich further noted in his testimony the applicant’s request to make a LOMA a condition of project approval would bypass the need for a more rigorous watershed level hydrologic study. In his December 8, 2023 written testimony, Dr. Silander also submitted evidence from First Street Foundation, an organization that maintains an independent floodplain data base, that reveals a much greater floodplain area on the parcel at 541 Middle Turnpike. Dr. Silander provided a map showing severe flooding on the parcel with blue shades depicted on the map indicating “the depth of flooding hazard risk, based on this property’s projected likelihood and depth of flooding reaching buildings on site.” The testimony from these two experts was not contradicted by the applicant nor by LandTech, the Mansfield Inland Wetlands Agency’s independent peer reviewer. Mansfield’s zoning regulations (190-72 B(1) state: “No structures to be used for residential occupancy are allowed within designated Flood Hazard Areas. The lowest floor elevation, including basement, of all nonresidential structures located within designated flood hazard areas shall be elevated to at least one foot above the base flood level (100-year flood level) or be flood-proofed with structural certification by a registered professional engineer or architect certifying that the building will withstand a flood equivalent to the 100-year storm without damage.” The applicant has the burden of proving the limits and elevation of the 100 year floodplain on 541 Middle Turnpike to ensure flood hazards do not adversely impact the proposed development and contribute to direct or indirect stormwater damage to the geomorphology of Cedar Swamp Brook.. The applicant has not done so. For this reason, among the other reasons identified herein, application W-1631 is denied.

15. Summary: Based on the findings contained in sections 1 through 14 above, wetland application W-1631 fails to comply with the Mansfield Inland Wetlands regulations.  Application W-1631 also fails to meet the intent of Mansfield Zoning Regulation; to provide a 50 foot setback from wetlands and watercourses wherever feasible. Significant impacts will occur to the wetlands and Cedar Swamp Brook as discussed above. The applicant failed to provide feasible and prudent alternatives that would avoid development in the upland review area. The applicant could have reduced the number and location of buildings on the developable land falling outside of the upland review area, steep slopes, floodplains, wetlands and the Cedar Swamp Brook. The applicant failed to offer a less damaging development proposal despite convincing testimony provided by the Mansfield Inland Wetlands Agency’s independent peer reviewer and expert testimony provided by Dr. Silander and Mr. Vidich.