By Thane Grauel

WESTPORT — After a lengthy review of plans to subdivide the old Kowalsky farm into six residential lots, the Conservation Commission decided Wednesday too many questions remain to act on the application.

Commission members discussed at length the impact the resubdivision might have on wetlands and water quality before deciding to continue the public hearing to May 18.

“After this evening I know less about this project than I did before the meeting started …” said commission member Paul Davis just before the vote to continue hearing. “I just don’t know enough to make a determination one way or the other.”

The commission has been asked to determine possible effects a resubdivision (the property was subdivided once before) could have on the site’s wetlands and water quality. 

P&Z waiting on Conservation action

It then will issue a report to the Planning and Zoning Commission, which will decide on the application. The P&Z can’t vote until it hears from the Conservation Commission.

Conservation Commission members and staff took a field trip to the farm at 109 Morningside Drive South last Friday. It came after a rainy night that left behind mud and puddling on the property.

Last month, the Flood and Erosion Control Board issued a report to the P&Z, recommending denial of the application. 

The board’s members mentioned some of the same issues that concern the Conservation Commission, including the existence of an underground drainage system — installed without permits — and how basements of the proposed homes might affect a high water table.

Staff report cites multiple issues

This week, the Conservation Department finished a staff report looking at an array of factors.

Among them, the basements were a concern, as was septic systems close to the high water table and how nitrogen might reach the groundwater. The report suggests a hydrogeologist be required to study some of the issues.

“Staff finds that, with all these uncertainties, it is impossible to know the impact to the wetlands and watercourses at this time,” the report reads. “We recommend that the Conservation Commission write a negative report to the P&Z Commission and that the applicant return once said issues are resolved.”

“Should the P&Z decide to go forward and approve the subdivision, Conservation Staff recommends that none of the houses be allowed to have basements and that each individual lot return to the Conservation Commission for review of its site development plan and that there is a strong likelihood that the Commission will require an outside expert(s) to aid in review of the applications.” 

“Furthermore,” the report concluded, “the Conservation Commission should recommend that real land be set aside for open space instead of allowing a fee to be paid. In this way, it creates more of an opportunity to resolve some of the groundwater issues even though a lot may be sacrificed in order to achieve this possibility.” 

The open space issue was mentioned by Conservation Commission Chairwoman Anna Rycenga at the meeting, and by at least one resident in emailed comments.

Applicant, town at odds over drainage system

At Wednesday’s meeting, commission members and staff seemed to differ with the applicants about what was pertinent to the resubdivision application, and what the Conservation Commission’s purview over the plan is.

Rick Constantini, a lawyer for the applicant, Kowalksky Family LLC, several times characterized the matter before the commission as “drawing lot lines on a map” for six houses. Water tables, basements and water quality impacts are not part of this phase, he said.

Conservation Director Alicia Mozian mentioned several of the points made in the staff report, which went into complexities of soils, septic systems and the fact that the 12.3-acre parcel once had far more wetlands before agricultural activities altered them.

The real sticking point, at least for commission members and staff, appears to be the existence of an underground drainage system on the property that is tied into town’s stormwater drainage system on Turkey Hill South. 

The drainage system has pipes ranging from 8 to 12 inches in diameter, according to an engineer for the applicant, Bryan Nesteriak. It is estimated to have been installed in the 1970s.

The applicant’s position is that the system was allowed at the time, and that removing it could cause unknown problems for neighbors.

The Department of Public Works is adamant that it be removed. No applications for a tie-in with the stormwater system, or regulations prohibiting such a tie-in back then, have been found.

Davis mentioned the unknowns surrounding the drainage system — when was it installed, why and did anyone look at the impact on neighboring properties?

“Is there any plan to look at those unknowns?” he asked.

“I’m sure it’s going to continue to play out,” Nesteriak said. “There’s no intention of exploring it because the owners feel as though it’s a legal connection that should remain.”

The two sides appear at a standoff on the issue, with its resolution possibly settled by lawyers and the courts.

In the short term, the drainage system looms large for the Conservation Commission members, as it did for the Flood and Erosion Control Board.

Ted Gill, a DPW engineer, said the requirement that the applicant remove the underground pipe system is immaterial to the resubdivision.

“If the application was withdrawn, the requirement stands, regardless of what development would happen on the property,” he said.

“In order to subdivide a property and show that you have a buildable lot, you need to show that you have a viable septic system,” Gill said. “And if a viable septic system depends on the soil testing and the soil testing depends on a pipe that we know is going to be removed, then basically the house of cards falls down as soon as we pull out that pipe right at the bottom.” 

The Conservation Commission’s public hearing will continue at 7 p.m. May 18 in Room 201 of Town Hall. It is an in-person meeting.