CONSERVATION ADVISORY COUNCIL MINUTES

November 8, 2005

Present:

Matthew Mastrantone, Acting Chair
Rodney Dow

Eric Lind

John Sussmeier

David Klotzle, Wetlands Inspector (WI)
Isabel Lopatin, Secretary

Richard Shea, Town Council Liaison

Absent

Andrew Galler

Lew Kingsley

Phil Vartanian

Guests:

Stephen Ferreira

Robert Jordan

Noah Matalon

Robert Colwell Petrucelli

Wanda Segarra

Anthony Torchia

Material Distributed

Jordan: Review of Proposal by Steve Coleman

Coral Sea: Wetland Functional Assessment by Steve Coleman

Matalon: Architect’s Drawing with topo, Survey with topo

The regular November meeting of the Town of Philipstown Conservation Advisory Council (CAC) was held in Philipstown Town Hall.  The meeting was called to order by Acting Chairman Matthew Mastrantone at 7:37 pm.

Applicant: Noah Matalon

Representative: Noah Matalon

Tax Lot: 83.13-1-14

Mr. Matalon distributed drawings with topographical lines. WI stated that this was what Mr. Sussmeier asked for at the last meeting. WI recounted that he had found Mr. Matalon digging a hole in a wetland on his property, not being aware of the wetlands law. WI asked him to stop, which he did. WI instructed him to put the material back in and appear before the committee in order to get a permit for a new driveway and an addition to his house. Mr. Matalon added that in November of last when the highway dept was installing a culvert by his property, he had discussed his plans with the Highway Superintendent, showing him a sketch that included the fish pond in the wetland. Before he dug in the wetland he had gotten BOH approval as well as a driveway permit, so he was shocked when WI appeared and informed him of the wetlands violation, because he thought he had gone out of his way to figure out what he needed to do [in terms of getting the appropriate approvals].

What he wants to do is build an addition to his home and build a driveway so he can get to it. He wants the driveway to not look like a driveway, so he proposed using Grass Pave II, a material of plastic disks that go on the soil through which grass will grow. WI asked if the material was pervious to water, and Mr. Matalon said that it was, and was, according to the data, better at allowing infiltration of water than natural sod.

The Chair asked if the driveway and addition were in the buffer, and was told yes. WI pointed out that the existing house and septic area in the buffer. The Chair asked how much regulated area would be taken by the proposed activity. WI said that mitigation in the form of plantings had been proposed, and that he would recommend that fill that has come from the road be removed as further mitigation. He said there was a foot of item 4 along the roadway. If it were removed, wetland soil might be uncovered, and if not, adding some good topsoil would probably encourage it to return to wetland in a few years. Mr. Matalon said that one problem he was having now was that since the Highway Dept put in a culvert, the whole area is being swamped. There is no easement for this on his deed, and he does not like having the culvert there. Mr. Dow said it was responsible for the item 4 in the wetland. Mr. Matalon said that the whole area is wetter than it ever has been. WI said that some of the water was from the road, but that it had been a wet few months. He continued by saying that the best that could be done with the permit is to have Mr. Matalon clean this area in order to make up for the driveway, and that this and the excavated area should be planted. Mr. Matalon asked who he should talk to about the culvert, and Mr. Dow told him that a Town Board meeting would be the appropriate venue. Mr. Shea suggested doing it in an informal way with the Highway Superintendent.

Mr. Sussmeier asked about BOH approval. He wondered if the existing septic had to be expanded. Mr. Matalon replied that it was a new system, put in in 1997 or 1998, whenever he bought the house. Mr. Sussmeier said the system looked small. The Chair didn’t like the proposed area for the addition, and Mr. Matalon explained that he didn’t want it there, but between setback regulations and BOH, this was the appropriate location. Mr. Lind asked about fill that would be going in, and WI indicated a shaded area on the plan, saying that it was outside the wetland, and was mostly weed and rock. Mr. Matalon would like it to become lawn. Mr. Lind asked about the risk of the new topsoil moving into the wetland before it was vegetation, and WI said a silt fence would be required, wire-backed, staked, and buried 6” deep. If it was in danger he would require hay bales as well. It would have to stay up until there was a nice stand of grass a year later.

Mr. Lind then asked if this was on the plan. WI said he had a general plan that he would work on with Mr. Matalon in the field. The permit would be based on that, and if it wasn’t fulfilled the permit would be stopped. Mr. Sussmeier said he was hung up on the planting plan, and WI said he would make sure that the planting plan was carried out.

The Chair asked the Council if there were any more comments. Since there was none he requested a motion. Mr. Sussmeier moved to approve issuance of the permit, contingent upon a planting plan that satisfies WI. It was seconded by Mr. Dow and passed unanimously. WI said he would write up a permit and send it to Mr. Matalon, who should sign and return it. Mr. Matalon was instructed that after the permit was returned he should call WI 5 days before beginning work, and that they would meet on the site to go over the planting and mitigation plans in detail.

Applicant: Robert and Karyn Jordan

Representative: Robert Jordan

Tax Lot: 17.2-87

Mr. Jordan appeared with a report from Steve Coleman and a USGS topo. He said that Mr. Coleman had provided a statement about the use of geo-textile in the area, including the construction of East Mountain Road North. He added that Mr. Coleman endorsed the concept. Mr. Jordan also said that he and Mr. Coleman had come up with a planting program for 3,268 square feet of mitigation space; 3,600 square feet of space would be taken for the driveway, so the plan is 400 square feet shy of 1:1 mitigation. Re culverts, the wetland is fed by 5-6 acres and the Padilla driveway just to the north has two 48-inch D culverts. During the recent heavy rain the wetland functioned at high capacity. Mr. Coleman’s report states that two 18-inch culverts would handle seasonal flows, but Mr. Jordan felt that based on the Padilla driveway, he would do two 48-inch D culverts at the two lowest points. Combined with the aggregate, etc, flow should be exactly the same as it is now. Mr. Jordan said he had answered the questions asked at his last appearance.

WI said he never received any information about the geo-textile from Mr. Coleman although he had spoken to Mr. Coleman on the phone. Mr. Jordan said it had been handed out at this meeting, and WI responded that he couldn’t absorb it all at the meeting but would have to go out and look at the places where it had been used. Mr. Jordan said that three locations were listed in Mr. Coleman’s document, including a section of East Mountain Road North where there is asphalt atop aggregate atop geo-textile. WI said he would have to look the report over before he could comment on mitigation. He further stated that he was still in favor of gabian, but that his opinion might change once he looked at the geotextile in action. Mr. Dow said that he and Mr. Vartanian had looked at the property. He said that the wetlands was huge, far larger than on the original map, and that building on marginal land was a big problem in the town. He didn’t think there should be a structure, period, and that an environmental impact statement on the wetland should be made.

The Chair asked WI if the property meets the criteria for a New York State wetland, and Mr. Jordan said that it is a state-regulated wetland, based on the newest map. The Chair asked Mr. Jordan if he had an application into the state as well, and Mr. Jordan said no, he was waiting for this one to be accepted. WI said it would benefit him to ask the state given the history of the Wallis application which is in the same area and was rejected by the state. He continued that while the town can co-permit it cannot reverse the state’s decision. Mr. Jordan asked if the reverse holds true, and WI replied that he didn’t believe so because it’s a state-declared wetlands, but he would check with the town attorney. The town can be more restrictive than the state, and would be less likely than the state to give a permit. Secretary Lopatin said the DEC felt that since the town law was more restrictive than theirs, it has greater power in those areas. Mr. Jordan said this sounded similar to the conversations he had had with the state; they sounded very relaxed in their consideration of his verbal description of the situation, but they had not seen any plans.

Mr. Jordan stated that he would be happy to do gabian, but thought that the geo-textile would have less impact on the wetland. WI said he was only for gabian at this point because he hadn’t had a chance to review the documentation he had just been given, and that he might change his mind. Mr. Jordan said he was just trying to be as non-invasive of the wetland as possible and that gabian would require digging. WI corrected him by saying the gabian would go on top, but Mr. Jordan said it would still be more invasive and it would be discussed again. Mr. Dow said that impact or not, the wetland was huge and he couldn’t understand why someone would be allowed to put a road through it. He continued that the wetland indicated on the property was just a small portion of the actual wetland.

Mr. Jordan said that what was on his property was 182’ by 162’, 4,600 sq ft of wetland was his. He said he wanted to make sure that what he did was not like what was done to the wetland just north of him and what is trying to be done to the south. He wanted it to remain wetland after he put the drive in. The Chair asked if he had closed on the property and was told yes. WI said the Coleman memo was dated October 10, and it would have been helpful if it had been distributed before the meeting. Mr. Jordan said he understood. The Chair said that some good advice would be to check with DEC and apply for their permit and see what they say. Mr. Jordan asked if his application should be tabled until he got a DEC permit. WI said he should do them jointly. Mr. Jordan said he wanted to understand where we were going before doing a construction plan because he wanted to be sure that what he puts down meets the town’s criteria. He continued that he felt confident that he knew what the state’s criteria were. The Chair said that the town has a section on criteria that is accessible on the town’s website. Mr. Jordan said he knew that and had been following it.

Mr. Sussmeier said that after looking at the topography he is not as concerned, but that he knew that a lot of water moved through there, and that this pond (indicating something on the plan) was hydraulically connected to flow through Mr. Jordan’s property, but according to the topo this was not the case. Mr. Jordan said the plan was correct. Mr. Sussmeier said he did not object to a wetland crossing for fair use of the propery but he was concerned about taking care of flow during a 100-year flood; he pointed out that Mr. Coleman suggested deferring that calculation to the project engineer because there is more land involved than 4 acres. Mr. Jordan said it’s at least 15 acres. Mr. Sussmeier said that no decision about culverts vs geo-textiles could be made without flow numbers. Mr. Jordan explained that culverts would be used no matter what; there would still be linear flow along the length of the driveway whether there was gabian or geo-textile.

WI said there are currently two developed properties on that watershed but that there might be more in the future. Mr. Jordan said that he didn’t think there would be more besides Wallis on that side of the street. He thought that the Wallis property couldn’t be divided because all you would get would be a ball of rock or wetland. Mr. Sussmeier said that Wallis was going to have the same issue – he would have to cross the wetland. WI said DEC held Wallis up on the septic and the crossing. He further said that he would be happy to give the Council a report on his investigation of the geo-textile by the next meeting if not sooner. Mr. Jordan asked what else was wanted from him. The Chair suggested he get an application into DEC. WI said that Wallis was told outright what DEC would or would not permit. Mr. Jordan said that when Wallis moved his house site all the way to the back he got the nod fro DEC. The Chair said he also needed engineering input about the size of the culverts, and Mr. Jordan said that was obvious.

This application will be on next month’s agenda.

Applicant: Gainer/Segarra

Representative: Stephen Ferreira

Tax Lot: 90.8-2-9

Mr. Dow began the discussion by asking how 38 Winston Lane, which is a neighboring property, had gotten approved. He said the entire area was wetland and that the hill had to be pulled out, and the septic system looks as though it is draining right into the wetlands. He had visited the property with Mr. Vartanian, who said that a number of trees were going to die because of the way work had been done. WI said he had noticed that. Mr. Dow continued by describing a culvert that is dripping clear water from the hill into the wetland. WI described how the Highway Dept had done some work there. Mr. Dow, returning to the property on the application, said most of it was wetlands. WI said it was less than a quarter of an acre so it was not regulated by Town law. The Chairman said it looked like everything except part of the driveway was going into the strea buffer. Mr. Ferreira said that right now the proposal was before BOH trying to get a permit, but they would not accept a revised application back until there is some feedback from the Town. WI said he hoped BOH wouldn’t act until hearing from him. Mr. Dow, indicating places on the plan, said that this whole piece is filled with water coming off the mountain, and goes into a marsh which feeds the lake. WI said there were half a dozen older properties in the same situation, and that he understood Mr. Dow’s objections, but that the applicant hadn’t created the problem. There was further discussion about the problems in this neighborhood.

The Chairman then stated that the lot in question was nonconforming and asked if a permit was required from the ZBA. Mr. Ferreira said that it’s a pre-existing noncomforming lot that was approved by Continental Village in 1950. Mr. Ferreira then explained that he was trying to fit the septic between the stream buffer and the property line. Mr. Sussmeier asked if there was a plan that showed a proposed septic area and wondered if an engineer had designed a system. Mr. Ferreira replied that he was the engineer and that he couldn’t go back to BOH until the Town gave him permission to build the house in the buffer. Mr. Sussmeier asked how many bedrooms were in the house design and Mr. Ferreira said it was starting out as three but that it might be reduced to two. The Chair asked WI for his opinion, and WI said it was an extremely difficult lot. When the regulated area is a stream, his greatest concern is that the septic field be 100 feet away from it. There would have to be a lot of engineering and protective measures to make it work and protect the stream. Mr. Sussmeier said that all the Council could do was to try to restrict the size of the house and keep the system as far out of the buffer as possible.

The Chair asked Mr. Ferreira about the situation with BOH who said he could show the Council the first plan, which showed the septic out of the 50’ buffer which is what the wetlands law used to require. BOH told him to make a plan showing the septic outside the 100’ buffer and to provide approval from the Town. He continued that he would be happy to distribute the latest proposal to the Council. The Chair said that was what was needed for starters. He brought up providing a mitigation plan, but wondered if there was any opportunity for mitigation on this property. WI said that there probably wasn’t and that doing this for a buffer wasn’t as important as doing it for an actual wetland. In this case, the buffer is protecting a stream. He asked if Mr. Ferreira had tried to locate the house elsewhere, though he wasn’t sure there was any other spot. Mr. Ferreira said that the septic was a fill system with a clay barrier and that there had to be a 3:1 slope back. Mr. Sussmeier proposed a scenario in which the house would have two bedrooms and the septic system was redesigned, wondering if the house could then be moved further north. Mr. Ferreira said that his feeling was that only a 2 bedroom system would fit outside the buffer and that there would still have to be fill and a clay barrier. The Chair then asked for a construction narrative along with the BOH proposal. WI asked Mr. Ferreira to include the stream protection plan in the narrative, who said he would include something like a small stormwater management plan.

Applicant: Coral Sea Properties

Representative: Robert Petrucelli

Tax Lot: 49.4.23-23

Mr. Petrucelli said that when he began this project he asked the Building Dept about wetlands on this property and was told there were none. WI had told him there was a brook next door. Mr. Petrucelli then enumerated what he had done as per the Council’s request. The building had been staked, the area had been calculated, and a wetlands report by Steve Coleman had been provided.

The report states that much of the property is a disconnected, manmade wetland that is a big puddle that was created by grading, and that it shouldn’t be a problem because it is manmade. All the surrounding property is commercial and can be developed. This lot’s area is too small to allow wildlife to flourish, and that if it weren’t touched it would remain the same, which is a lot of brush and a few small trees. If the property were developed, what’s there would be lost and that mitigation could only be done on another piece of property. Mr. Petrucelli said that the property across has a stream and is under a conservation easement, perhaps something could be done there since it wouldn’t be developed. WI said you’d have to own the property to do something about it, and that the outlet isn’t well defined. He continued that Mr. Coleman’s report says that the wetland has moderate value: it collects water during seasonal flows and probably cleans the water and lets it go into the ground somewhat. He said that his question is, if this wetland were filled in, what would become of the water? Mr. Petrucelli replied that it would go into the drainage system and infiltrator filter system. There’s a drainage line that runs in front of the property that dumps into the brook on the opposite side of the driveway entrance to Papa John’s and then crosses the road and goes up to Fishkill. WI asked if water would be collected on the uphill side of the lot. Mr. Dow interjected that the water does not go to Fishkill but to Indian Brook. Mr. Petrucelli said that runoff from driveway, sidewalks and building roof would be picked up and run through the infiltrators and pumped into the drainage line.

WI said that this assumes that all the water is from rainfall, and that he thinks some of it comes from elsewhere on the site. Mr. Petrucelli said that the property is fairly flat, and that what he has noticed is that the little brook (indicating location on the plan) which is 2-3 feet wide and 8-10” deep, and it sometimes runs fast. However, he doesn’t see water running off this property onto the adjacent property. WI said he hadn’t either, but that his concern was that the water is coming from someplace and you need to know what that is so the building doesn’t sink into it. Mr. Torchia said that the glass guy has raised his whole property. WI said this has been added to recently. Mr. Torchia said that there didn’t seem to be any water pouring out of there. Mr. Petrucelli said that the property climbs steeply about 100’ back from where the grading ends. Water is running along the bottom of the hill and working its way to the side of the property in question and to the lot between it and Papa John’s.

The Chair said that there are number of issues about this property that don’t meet the criteria for granting a wetlands permit. He wondered how what could be done for a septic system if it’s all hydric soil that gets filled. He supposed that it would fill with water and that even if a permit were granted, the property wouldn’t have the perc for a septic. Mr. Petrucelli said he had done some test pits himself and he was getting 7 – 9 minutes per inch. The Chair said he had been there during the dry season and that the wetland vegetation was still thriving and the soil was very wet. Mr. Petrucelli said there is clay in the soil and was advised that putting a septic in that site wouldn’t be a big problem. There would be 6-8 people working in the building because some of it would be rented. There would be 3 bays for trucks that are part of the required spaces. Outside the building would be parrking for 13 vehicles - 2 handicapped and 3 for trucks. The Chair asked about the nature of the business, and was told it would be building and servicing swimming pools. The Chair then asked about storage of chemicals like chlorine. Mr. Torchia said dry chlorine would be stored in pails.

WI then said that the law requires 1:1 replacement of wetlands that are taken. Mr. Sussmeier asked where the septic would go and Mr. Petrucelli said it was laid out on the plan. Mr. Torchia said when he considered buying the lot he asked about wetlands and was told there was no issue. WI asked him who in the Town he had called and Mr. Torchia replied that it was the Building Inspector. WI said that wasn’t the correct person to ask. Mr. Torchia said he hadn’t bought the property yet, and that he didn’t want to go further if he was not going to be able to build. Mr. Petrucelli said that the lot was small and ZBA was treating it as a pre-existing, nonconforming site. ZBA said he had to go by what was deeded, which is 13’ smaller in every direction from what Badey & Watson had as dimensions of the site.

WI said that Mr. Torchia wasn’t being told that he couldn’t build on the site, but that in order to build he would have to comply with the law and build a similar size wetland somewhere on the same watershed since it couldn’t be done on the property. He thought this might be cost-prohibitive. Beyond that, there would be a number of water problems. Mr. Torchia said he guessed that the owner next door had filled to the edge of or into the buffer. WI said he had written to said owner. The Chair said the neighbor’s fill was a few feet into the buffer. Mr. Petrucelli said he had reduced the size of the building from 6,500 to 4,000 square feet, which is marginal for Mr. Torchia’s use. Mr. Torchia wanted if anything could be done to make his project work. WI said that the Council has to send a report to the Planning Board. Mr. Petrucelli said he was told he needed a wetland permit first, so the Chair explained that PB actually gives the permit and that WI and the council report to PB what they think can and cannot be done with the property. Mr. Torchia said that if CAC didn’t favor his application, he didn’t want to go through a lot of other meetings and not get approved. WI told him that PB could completely disregard the report. Mr. Petrucelli said that Tim Miller had reviewed the plan, and went through some of the details. Mr. Sussmeier said that the bottom line for CAC was that the plan as presented will annihilate the wetland (Mr. Petrucelli agreed) and that was all that could be said in the report. It would be up to PB to make the decision. WI said the report should reiterate the law and remind PB that no matter who the permitting authority is, the law still requires 1:1 mitigation. The Chair said that CAC could not recommend the permit. WI said there didn’t have to be a recommendation, just stating the facts, including mitigation, should suffice. The wetland, as determined by Mr. Coleman, does have some value, and this should be included. He went over possible ways of accomplishing mitigation on other property. Mr. Petrucelli again brought up the property across the street.

Mr. Lind consented to right the report to PB.

Inspector’s Report

The Galleghers asked for permission so amend their permit to put the electric line out of the wetlands, which WI allowed. They also asked to reposition the barn slightly, which will take it out of the wetland buffer, which WI allowed. They have another piece of property where the dry well failed, and he gave them permission to do it on an emergency basis as long as he is informed when the work would be done and silt fences are used.

Irwin is just about finished. The erosion is under control and final BOH approval for the septic is needed.

The Eduardo Loria violation on 9D across from St. Basil’s will become a permit application. A silt fence is in and the driveway will be improved and enlarged. Everything is 110+ feet back from the wetland and even with the rain no damage has been done.

There is a violation on Hale Court, which is off Winston Lane, which WI hasn’t had much chance to work on yet.

Indian Brook LLC is active, and WI has allowed some changes in the planting plan for the replacement wetlands. WI hasn’t heard from the developer yet. According to PB, everything that goes on is to be under WI’s control.

At Lane Gate and Route 9, there still is no wetland violation depending on how long the items have been within 100 feet of the pond.

WI performed a determination on Ethan Drive where there is a small wetland in front of the property.

Kevin Jones has done a little more work, so WI is after him again.

Re Kreps pond, a permit application will be made to DEC and a bathometric survey will be done, which WI thinks can be done through the ice. WI and Mr. Triano will meet with DEC on the property. The survey will determine the depth of the bottom of the pond, and DEC requires this for a dam permit. Mr. Sussmeier said that his calculation is that there are close to 2 million gallons of water in the pond.

Minutes of October 11, 2005

The Chair pointed out a typo and the Secretary pointed out another. Mr. Dow moved to approve the memos provided these were corrected, and Mr. Sussmeier seconded the motion. It was passed unanimously.

Closing of Meeting

The meeting was adjourned at 9:17 on a unanimously passed motion that was made by Mr. Dow and seconded by Mr. Sussmeier.

Respectfully Submitted,

Isabel Lopatin, Secretary