Avon Wetlands Commission continues 100 Nod Road hearing

The proposed development site via a map presented by the development team.

Update: Feb. 9, 2023 – The Avon Inland Wetlands Commission is now slated to resume a public hearing related to a planned residential development of 55 units at 100 Nod Road on March 7.

The hearing was slated to continue Feb. 7 but was delayed because the commission lacked enough of its members in attendance to hear the issue.

At least four of the seven commission members – or a “quorum” – need to be seated to hear a matter. Two commissioners, Michael Feldman and Gary Gianini, have recused themselves from hearing the application and on Feb. 7, two additional members were unable to attend the virtual hearing, meaning it could not continue that evening.

See the original story below.

By John Fitts

Staff Writer

AVON - On Feb. 7, the town’s Inland Wetlands Commission is slated to continue a public hearing related to a planned residential development of 55 units at 100 Nod Road.

100 Nod Way, LLC, managed by local developer P. Anthony Giorgio, PhD., is looking to develop the 9.3-acre parcel with 13 single family homes and 8 buildings with 42-townhouse, common interest units. A wetlands permit is being sought for the development, which is dubbed Eagles’ Point. The proposal would also need Planning and Zoning Commission approval but as of Jan. 10, developers had not filed an application to that commission.

The public hearing gives the public an opportunity to learn about the application and ask specific issues related to what the wetlands commission is authorized to consider, commission vice chair and acting chair Michael Sacks told the public at a Jan. 9 public hearing.

“Simply put, aim your remarks to provide evidence of the likelihood of substantial damage to the functions and values of wetlands and watercourses or to raise relevant questions that show the need for further study or inquiry,” he told members of the public. “I would like to emphasize that this is not a referendum. The commission makes a decision on whether or not the regulations are satisfied and not the number of persons who favor or oppose an application. ... nor by the vehemence with which these opinions that expressed here are made.”

According to the application, watercourses on the south and north end of the sites were “channelized,” to varying degrees in 1997, when the town straightened a portion of Nod Road by paving a connection between two sharp curves. That curved portion was renamed Nod Way and the land in questions now sits between it and Nod Road. A “fringe” of woodland wetland borders that stream on site, according to the application

“The watercourses that are present on the north and south ends of the 9.3 acres are not natural, but they are town made and the site is mostly previously disturbed,” Timothy S. Hollister of Hartford-based Hinckley Allen, speaking on behalf of the developers, said at the beginning of the public hearing on Jan. 9.

The application asserts that no wetlands would be negatively affected by the development.

Developers contend there would be no direct impact to either wetlands area and only minor and mostly temporary impacts within the 100-foot upland review area.

“The development plan does not involve any direct filling, disturbance or impact on any watercourse or wetland,” Hollister said. “The only activity that brings us here tonight for a permit is work within this so-called 100-foot upland review area, which again is a not a wetland or watercourse. That is something that’s often misunderstood in wetlands hearings and as a result the. ... work in the non-wetland upland review area will not have an adverse impact on an existing substantial function of a wetland or watercourse. The plan here has been very carefully designed to stay away from the town made north-end drainage channel and the south end watercourse so there will not be any direct or indirect watercourse impact.”

One driveway and related site improvements in the northwestern part of construction would be within 100-foot upland review area but that area does not drain toward the stream, according to the application. On the southwestern portion of the property, the only activity within the 100-foot upland review area would be the extension of a water main within the paved portion of nod road, a relatively brief activity, the application states.

At the meeting, Hollister also suggested that water shown on site after storms - documented by many residents - and which he described as “overtopping” - was likely due to lack of maintenance on the town’s culvert system designed to provide drainage from the Hunter’s Run development.

Hollister also said the Farmington River is 1,300 feet away and said there will be no impact to it.

“There is no existing - what the engineer’s call hydraulic connection - between the subject site and the Farmington River,” he said.

He also said a North Central Conservation District analysis concurred with the applicant’s assertions.

Guy A. Hesketh – engineer at F.A. Hesketh and Associates and soil scientist William Kenny of William Kenny Associates also addressed the commission, going into much more detail about stormwater management, erosion controls and soil types on the site.

Kenny also said the development team checked with the state Department of Energy and Environment Protection and its Natural Diversity Database for the property and noted the potential for eastern box turtles – due to good habitat - on the site but said that the state’s guidelines would be carefully followed to protect them any on site.

Commission members asked directed some questions to the development team, seeking more detail about the application, current culvert systems and the accounting for climate change.

According to the application, “Overall, the development will result in an increase in impervious coverage. To mitigate and manage stormwater runoff from these impervious surfaces, three water quality treatment basins are proposed. These basins will manage runoff from each of the single-family residences as well as the multi-family buildings and the associated impervious surfaces. In addition to managing onsite stormwater runoff, the development has been designed to also manage the stormwater runoff from Nod Way and from land to the east that currently discharges to the property via a culvert from Nod Way.”

Water quality treatment basins will need routine maintenance, developers said in response to a commission question.

While the development team acknowledged climate change as a factor, Hesketh said the latest National Oceanic and Atmospheric Administration (NOAA) standards are now updated in “real-time,” and were taken into account.

Following the presentation – and before the public comment portion of the meeting - Sacks read some excerpts of resident letters that were sent to the commission.

Dominick and Dorothy Cinti wrote about climate change, questioning the density of the development in light of future predictions for rainfall.

“The Fourth National Climate Assessment from noaa.gov, published in Nov. 2018, documents dramatic increase in actual and predicted heavy precipitation and flooding in the northeast. Flash floods as well as flooding of rivers and streams (such as the watercourse on the island) have increased and are expected to continue to increase.

Even if the 100 Nod Road island is left in its current natural state, climate change will increase the likelihood of water issues on the island itself and flooding of Nod Road. N.B. Just last year, heavy raised caused unusually severe damage to units & properties in Hunter’s Run where the housing density is only approximately 1 unit/1 acres (263 units on 266 acres)

The proposal for development of 100 Nod Road, with a density of approximately 6 units/1 acres (55 units on 9.3 acres) would destroy pristine natural habitat, endanger aquatic organisms, wildlife and vegetation, creating a virtual little city covered with impervious surfaces– buildings, roads driveways, walkways, etc. this could endanger the fragile wetlands on this parcel of land and greatly magnify the risk of flooding and polluted stormwater runoff over Nod Road and toward the river.”

Another, from Victoria Leibman contended the property was important habitat for many species.

“Wildlife will be directly impacted as this area is home to various animals and amphibians ranging in size from mice, frogs and snakes to deer and bear,” she wrote. “With the loss of habitat, these animals will seek new habitats and food sources within the already developed areas nearby. I am not a birder but have seen birds in this area that I do not see in any other area while hiking on the trails or paths within the Farmington valley. These birds use the proposed area as a habitat and food source and would surely be displaced.”

Gillian Smits wrote about birds as well, contending “this parcel of land has a range of habitats, supported by its soil, that provide ideal conditions for many species of birds to frequent this area. It is a mixture of meadow and grassland, mixed deciduous forest and shrub habitat, and it provides the necessary habitat for many specifies of birds that live here year-round, as well as being an important area during Spring and Fall migration. It is an important area in spite of its relatively small size, because of the nearby golf course which does not provide food, shelter or nesting conditions for the birds, due to the nature of its over development and extensive grassy areas.”

Smits went on the give more specie specific information and said she collect scientific date for Cornell University.

Hollister addressed the assertions made in those letters and others.

“First let’s go back to the very basic. … issue. … before the wetlands commission. Is there an adverse impact to the function of a wetland or watercourse? Mr. Kenny has given his testimony before the commission as an expert that there is no impact,” he said. “Birds turtles, salamanders are not the protected resource, even if there is some evidence that those populations would be impacted. Unless there is an impact to their habitat or function in a wetland or watercourse is not within your jurisdiction. That is just simply the law. With all due respect, this really is an area of expert testimony. I really don’t mean in any way to be disrespectful to the residents, but they’re not experts. The person you mentioned may be an expert in ornithology, but wetlands science and wetlands impact science is a specialized discipline. I would point out that your own town engineer reviewed our stormwater management plan and found that it was in line with expectations and standards of this industry.”

On another point, Hollister addressed the assertions of flooding and rainfall amounts.

“Mr. Hesketh discussed climate change with respect to rainfall based on current, real-time data. That’s all we can do. We can’t speculate as to how climate change may affect rain fall amounts in the future. That’s just guesswork,” said Hollister, who also contended the property was above the 500-year flood elevation.

“There’s no possibility here that even a gigantic storm is going to flood this property,” he said.

While the meeting was virtual, some residents, when it came their time to speak, noted their objections to Hollister’s comments.

“To attorney Hollister’s comment about the fact that we don’t know about the future climate change and how that’s going to affect this, We’re prudently planning for the future," said Jill Adams. "It seemed dismissive to say we don’t want to take into account anything that is a prediction of the impact of climate change is going to have on these proposed plans. So, just again, I would raise an objection to that comment and look for more information on the future climate change conditions and how that would affect the plans here.”

Dorothy Cinti reiterated some of the contents from NOAA government report she wrote about and the vulnerability of community to effects of climate change and the ability of governments to adopt to them.

“As you know much of their report is about predictions for the future, which are actually quite dire in regard to expected precipitation in the northeast, so it’s the future that we really do need to be planning for,” she said. “To not do that would be very, very foolish and shortsighted.”

Many residents also spoke to the density of the project and while housing density would be under the purview of the Planning and Zoning Commission, many residents tied it back to environmental concerns.

“I’m concerned with the extreme density of this layout, and I believe [commission member] Carol Hauss talked about the fact that so much of this parcel is high density housing, roadways and very little area left for any type of greenery,” said Arthur Freedman. “So, I’ve heard a lot about the control of runoff water, stormwater, etc. I haven’t heard much of anything about the potential for pollution. They’ll be an extreme amount of construction in a small area, and it would be predictable to have one, maybe more, inadvertent negative happenings, where things don’t go well and pollution gets into the groundwater and eventually gets into the Farmington River.”

Jim McGarrah – urged the commission to analyze the “over time factor,” reference the admitted need for maintenance of stormwater basins.

“It’s been demonstrated by the applicant that it’s no simple matter to address the majority of the wetlands, drainage, watercourse issues and related topics arising from their proposed development,” he said. “I’ll risk stating the obvious that it’s precisely because of the applicant’s desired development that the issues are complex and difficult to manage. They are in control of that. Put simply, if this were a smaller scale project fewer of these problematic issues would be in play and it’s plainly clear to me that it’s actually unknown how much of an effect on the wetland drainage and watercourses there would be from this development because it’s so large and the parcel is so small and [it] is already stated that there would be changes to existing watercourses and drainage. I understand that there is a legal standard in play, but the reality here is the applicant’s explanations amount to what is essentially educated hope. And when problems arise on this parcel, and they will arise because of the density here, the applicant will be long gone.”

While Hollister gave the applicant’s viewpoints on some of those assertions earlier in the meeting, emphatically stating, for example, that the development was separated by a golf course and other drainage features and was of no risk to the river, he did not speak again after public comment, except to note that the team would reply to the residents’ comments in writing prior to the next meeting.

The commission then decided to continue the hearing at its next regularly scheduled meeting on Feb. 7.

As that date gets closer, specific meeting information will be posted to https://www.avonct.gov/inland-wetlands-commission

The planned layout is shown in relation to wetlands and the upland review area - as presented by the applicant.