Reasons to Deny the Development Proposal at 555 Middle Turnpike, Mansfield, CT

Based on the testimony and documents of record involving Mansfield Wetland Permit Application W-1632, for a proposed residential development at 555 Middle Turnpike in 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 53 dwelling units on approximately a 5.9 acre parcel. A total of 100% of the 53 buildings proposed will be completely located within the 150 foot upland review area established by the Mansfield Inland Wetlands Agency. The applicant has proposed a site plan that will impact 49.23% of the 5.9 acre parcel (See Reference: Bohler Wetland Impact Exhibit EA-01, Revision 3, 12/01/2023). The proposed developable land area will have a density of 22 dwelling units per acre and will impact 1.58 acres of the upland review area. It is highly probably that this level of development will significantly impact the water quality of the Cedar Swamp Brook. About 38% of the developable land area will become impervious due to buildings, parking and paved areas. According to testimony from Charles Vidich at the December 18, 2023 public hearing, impervious cover exceeding 25% can significantly degrade water quality – specifically causing excessive discharges of phosphorus, nitrogen and total suspended particulates. 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. 

2. Inadequate Wetland Buffers: LandTech, the independent peer consultant for the Mansfield Inland Wetland Agency, did not find the applicant’s proposed development plans to be consistent with protecting the wetlands on the 5.9 acre parcel. In reference to the wetland buffers, LandTech stated: “This is a very dense development proposing to utilize almost all of the available adjacent upland, leaving only minimal buffers. Many of these buffers are inadequate for the quality of wetland on site. The Applicant agrees that some areas of buffer proposed are very narrow (10’ – 20’) and may negatively impact the existing wetland functions in some areas and that in general the buffers should be larger. The Applicant also stated that no more buffer area is available based on this site plan. We see reducing the development’s footprint as a way to provide adequate wetland buffers on this property.” (See LandTech December 6, 2023 Peer Review, Attachment A page 3). The applicant has the burden of proving there will not be any direct or indirect impacts to wetlands. The applicant has not done so.

3. Significant Indirect Impacts to Wetlands: LandTech addresses the applicant’s alternative analysis by stating: “The Applicant submitted two alternative layout plans with the application and another in a small figure in Bohler’s Oct 27 response letter. Alternative 1 (shown on Figure EX‐02) appears to provide larger buffers throughout the property as it has a limit of disturbance which is beyond 50 feet from the wetlands. A description of why this alternative has not been pursued has not been proposed. This comment is included in our November 17th comment letter so we will review their response when it arrives.”  (See LandTech December 6, 2023 Peer Review, Attachment A page 3). A subsequent response from the applicant never resolved this issue. It is clear from the LandTech analysis and the applicant’s proposal to significantly overdevelop the site, at a density of 22 dwelling units per acre, the riparian and wetland buffer values provided by the upland review area will be eliminated. The evidence presented by LandTech indicates significant indirect impacts to wetlands by elimination of the buffer zones – especially in view of the high groundwater table, steep slopes and the proposed plan to impact 49.23% of the entire parcel. Protecting the wetlands requires the protection of the upland review area that serves as a pollution filtration system. The applicant has the burden of proving there will not be any direct or indirect impacts to wetlands. The applicant has not done so.

4. Failure to Identify or Protect Class A Water Quality of Cedar Swamp Brook: 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 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-1632. 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.” Without baseline water quality sampling the applicant has not demonstrated it will be able to protect the current Class A water quality classification of the Cedar Swamp Brook. The applicant has the burden of proving the proposed development will not have any direct or indirect impacts to wetlands. The applicant has not done so.

5. Failure to Conduct Field Survey in Natural Diversity Data Base (NDDB) Area to Identify Critical Habitat: The applicant failed to conduct a field survey to identify the presence of critical habitat on the 5.9 acre site. Specifically the applicant failed to reference the most up to date online Natural Diversity Data Base (NDDB) Areas found on the CTECO Interactive Map Viewer which identifies significant portions of the site as falling within the NDDB Area. Therefore an onsite biological assessment of the parcel was merited. Attachment A depicts the December 22, Natural Diversity Data Base Areas for Mansfield and Attachment B depicts the more precise Natural Diversity Database for the area that includes the land associated with application W-1632. As can be seen by comparing the two maps, the more precise delineation of the NDDB Area found on the ECO Environmental Conditions Online Map reveals the NDDB area covers portions of 555 Middle Turnpike. 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. The applicant has not done so.

6. Inaccurate, Deceptive or Incomplete Natural Diversity Data Base (NDDB) Data Provided to Commission: 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.”  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 in the NDDB 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. The applicant has the burden of proving the proposed development will not have any direct or indirect impacts on the habitat of terrestrial, aquatic or avian species living in wetlands habitats. The applicant has not done so. 

7. 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 since 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 the 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, John Silander PhD. noted in written testimony submitted 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.’” (page 2 of Silander’s written testimony). Dr. Silander also provided written testimony that, “…the wetlands report submitted by the developer for Middle Turnpike 555, 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 reported wetlands functions and values assessment.” Dr. Silander’s expert written testimony has not been contradicted by the applicant (also see YouTube video of December 18, 2023 public hearing on Application W-1632: Hour 4: Minutes 33; Seconds 56 https://www.youtube.com/watch?v=DYm05VFnf1Q). The applicant has the burden of proving the proposed development will not have any direct or indirect impacts on the functions and values of the wetlands. The applicant has not done so.

8. 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 held a public hearing on this application with extensions granted on several occasions. Despite the extensions provided, the applicant for the property located at 555 Middle Turnpike 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 5.9 acre parcel. It is highly probable, the applicant, by placing 100% of the buildings in the upland review area will significantly affect the following; 1) 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; 2) the ability of the upland review area to function as a wetland buffer to reduce discharges of phosphorus, nitrogen and total suspended particulates and 3) the ability to reduce thermal pollution of the headwater seeps found on the property which will adversely impact the Cedar Swamp Brook’s habitat for fish and other aquatic species. 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 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’s proposed development will also have significant impacts on the headwater seeps which in turn will affect Cedar Swamp Brook’s physical and chemical characteristics. Despite these adverse impacts the applicant has failed to provide a feasible and prudent alternatives analysis that would avoid these impacts. Tom Ryder, LandTech’s biologist asserted at the December 18, 2023 public hearing that application W-1632 will not protect the headwater seeps on the westerly side of 555 Middle turnpike from thermal pollution if the tree canopy provided on the adjoining land on 541 Middle Turnpike was not maintained under an easement. Specifically Mr. Ryder stated “if 555 (Middle Turnpike) is developed and not 541 (Middle Turnpike), then that planting area southwest of the wetland would have to be done regardless” – the planting area he referenced is located on 541 Middle Turnpike and would be essential to maintaining the shading benefits over the headwater seeps on the adjacent land on 555 Middle Turnpike. In effect, Mr. Ryder asserted application W-1632 cannot protect the headwater seeps and the wetlands functions without an easement over the land on 541 Middle Turnpike that specifically stipulates there will be measures taken to protect the existing tree canopy on that land. The applicant proposes to provide a 20.04 acre conservation easement that would include 17 acres located on the property at 541 Middle turnpike and 3.04 acres from the property located at 555 Middle turnpike. However, the proposed conservation easement will not protect the headwater seeps from thermal pollution unless specific stipulations require canopy protections for trees located on 541 Middle Turnpike. (See YouTube video of December 18, 2023 public hearing on Application W-1632: Hour 4: Minutes 25; Seconds 53 https://www.youtube.com/watch?v=DYm05VFnf1Q : also see Conservation Easement Exhibit EX-01, dated 2/28/2023). The applicant’s proposed development fails to protect the headwater seeps on 555 Middle turnpike from the significant adverse impacts from thermal pollution as identified by the expert testimony of Dr. Silander or Mr. Ryder at the December 18, 2023 public hearing. The proposed easement LandTech recommends to protect tree canopies on 541 Middle Turnpike, depends on the simultaneous approval of both application W-1632 and W-1631.  Each application must be evaluated on its own merits – not as a joint venture. More importantly, the applicant has never considered a less intense development scheme that would be consistent with the carrying capacity of the land and the protection of the significant ecological resources on and immediately downgradient of the proposed development.  The wetlands buffer zone has been transformed into a development zone eliminating irreplaceable buffer functions that protect the headwater seeps and water quality of the brook. The applicant has the burden of proving the proposed development will not have any direct or indirect impacts on the functions and values of the wetlands or the downgradient Cedar Swamp Brook. The applicant has not done so.

9. 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. LandTech staff (Mr. Tom Ryder) reported the applicant did not consider less intensive development alternatives that were feasible or prudent.  Based on this evidence, 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 5.9 acre parcel. These impacts can be avoided by reducing the development proposal to land falling outside the upland review area. This would require a scaled down density of development which 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 creates significant offsite impacts to wetlands and the Cedar Swamp Brook by turning a regulated area into a development zone. Extensive sections of the proposed development fall within 20 feet of the wetlands. Wetland protection is the primary purpose of inland wetland regulations – not achieving the maximum economic benefit from development proposals. Absent a finding of an adverse impact the inland wetlands agency 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 Dr. Silander, have demonstrated there will be adverse impacts to the wetlands from overdevelopment within 20 feet of the wetlands where headwater seeps will be directly impacted by lack of tree canopy to reduce thermal pollution. The upland review area represents a buffer zone that protects wetlands functions and values. This has been well documented through extensive scientific research (See Silander verbal testimony of December 18, 2023 accessible on YouTube). The upland review area provides robust water quality protection functions for nutrients such as phosphorus and nitrogen when buffers of 100 to 150 feet are maintained free of development and impervious cover. Dr. Silander testified that buffers of at least 50 feet are required to protect headwater seeps found on the 5.9 acre property located at 555 Middle turnpike. The value of the wetlands buffer will be severely compromised by excessive impervious cover impacting at least 49.23% of the developable area. The applicant has the burden of proving the proposed development will not have any direct or indirect impacts on the functions and values of the wetlands or the downgradient Cedar Swamp Brook. The applicant has not done so.

10. Physical impacts to the Wetlands and Watercourse on Site: In accordance with the 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, application W-1632 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 Class A water quality classification will be maintained nor provided an accurate wetland delineation with flags identifying the physical limits of the wetlands and watercourses onsite. The 2020 wetlands survey does not represent a precise delineation of the wetlands and therefore 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 by Attorney John Parks for the abutting development proposal on 541 Middle Turnpike. 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 the physical characteristics of the 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.  Furthermore, no soil sampling results from the 2020 Wetlands delineation have been provided to confirm the limits of the wetland boundary. 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.

11. 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 5.9 acre parcel and more specifically in the 2.44 acres designated as developable (See Bohler Site Layout Plan C-301, dated 12/8/2023). The proposed stormwater controls are based on an inadequate 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 during 24 hour 25 year, and 24 hour 50 year storms. Under these storm events, it is highly probably the stormwater system will fail to protect the wetlands and the Cedar Swamp Brook from physical damage from uncontrolled stormwater. The stormwater controls associated will be overwhelmed 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 the stormwater management system will not adversely impact the wetlands or Cedar Swamp Brook. The applicant has not done so.

12. Proposed Maintenance Intensive Stormwater System Not Fool Proof Experts Assert: Without routine maintenance of the stormwater controls, stormwater detention basins may be overwhelmed with leaf litter and other obstructions that incapacitate water quality and water quantity controls. Soil testing data collected during one of the driest months of 2022 should not be used to establish stormwater percolation rates nor to determine the impact of stormwater discharges on 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 the 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. Silander 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 the proposed development and its stormwater management system will not have any direct or indirect impacts to wetlands or watercourses. The applicant has not done so.

13. Commission is not authorized to Condition an Inland Wetland Permit Approval Matter Outside its Statutory Authority: Application W-1632 proposes to provide 3 acres of its land to meet the open space needed for 541 Middle turnpike (application W-1631) so that the latter can achieve a 20 acre open space requirement established for the DMR zone. If application W-1632 is not approved to provide the additional 3 acres for application W-1631, the latter will not be in compliance with Mansfield’s zoning regulations. The Inland Wetlands Agency is not authorized to condition the approval of one application (i.e., application W-1632) on the simultaneous approval of an independent application (i.e., application W-1631). Such a conditional approval is not authorized by the Connecticut General Statutes. 

14. Application W-1632 is Inconsistent with Zoning Regulations: Prior to the submission of application W-1632, 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-1632 is not consistent with this zoning performance standard which is governed by Connecticut General Statutes § 22a-42a(d)1. The applicant has the burden of proving the proposed development cannot comply with the 50 foot wetland setback established in the zoning regulations. The applicant has not done so.

15. Misrepresentation of the 100 Year Floodplain Boundary: At the December 18, 2023 public hearing, Dr. Silander testified the applicant’s floodplain delineation relies on a 1981 FEMA 100 year floodplain delineation. The 1981 delineation is not supported by latest scientific, hydrologic or 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.” The applicant’s reliance on an outdated FEMA map is without scientific or evidentiary foundation for determining the boundaries of the 100 year floodplain. Dr. Silander also testified that recent updates to historic FEMA 100 year floodplain maps have revealed dramatic increases in the size of the 100 year floodplain boundaries. Furthermore, he stated at the December 18, 2023 public hearing on application W-1632 that the Director of FEMA reported “all of these maps are totally out of date and need to be updated.” He also testified at this same public hearing concerning increases in impervious surfaces on flooding. He stated one study showed a one percentage point increase in impervious basin cover causes a 3.3% increase in annual flood magnitude. He further clarified that floodplain maps are not based on contours but on changes in impervious surfaces. (See YouTube video of December 18, 2023 public hearing on Application W-1632: Hour 4: Minutes 36; Seconds 27 https://www.youtube.com/watch?v=DYm05VFnf1Q). The conclusion to be derived from Dr. Silander’s presentation is the applicant’s floodplain map incorrectly presents the flood hazards posed to the applicant’s proposed development plan for 555 Middle Turnpike. Furthermore, larger floods will adversely impact the physical characteristics of the wetlands and watercourses on the site due in part to the extensive impervious cover proposed by application W-1632. Indeed Dr. Silander’s testimony at the December 18, 2023 public hearing was not contradicted by the applicant nor by LandTech, the Mansfield Inland Wetlands Agency’s independent peer reviewer. The applicant has the burden of proving the proposed development will not fall within the 100 year floodplain of the Cedar Swamp Brook. The applicant has not done so.

16. Summary: Based on the findings contained in sections 1 through 15 above, wetlands 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.