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HomeMy WebLinkAboutSite Plan - Conservation (77) i TOWN OF SOUTH WINDSOR INLAND WETLANDS, WATERCOURSES AND CONSERVATION APPLICATION Application # N 3sp Date Received L4"a� INSTRUCTIONS 1. Fifteen applications (15) with map and plans (2 copies) shall be submitted together with the fee set forth in the Inland Wetlands, Watercourses and Conservation Regulations, Town of South Windsor. (See Regulations, Section VII - X) 2. The South Windsor Inland Wetlands, Watercourses and Conservation Regulations should be reviewed with respect to the standards and criteria for application Evaluation. (See Regulations, Sections VII -X) 3. The applicant understands that this application is to be considered complete only when all information and documents required by the Agency have been submitted. The applicant shall also complete the state filing form. A. Applicant's Name: Evergreen Walk LLC Address: 555 Main Street, Manchester, CT 06040 Phone: (home) (work) (860) 643-6100 (fax) (86o) 647-o692 B. Legal owner's name: Same Address Phone (home) (work) (fan) (List additional owners, addresses, and phone numbers on back of application) C. If the applicant is not the owner of the subject property; a letter by the owner(s) authorizing the proposed regulated activity set forth in the application must accompany this form and will be part of the application. D. Project Name (if any) LA Fitness at Evergreen Walk 1. Contact Person (if further information is needed) Alan F. Lamson (work) 860) 568-4n3n (fax) (&tin) 5(;$-512A E. The geographical location of the property which is to be affected by the proposed regulated activities including a description of the land in sufficient detail to allow identification of the property on the Inland Wetland and Watercourse Map. Assessor's map # 27 Parcel # 15 ZOrie Go *See attached list F. Names of all abutting property owners from records in Town Clerk's office. (use separate sheet if necessary) See attached list G. Have you notified all abutting property owners (from records in Town Clerk's office) by certified letter that an application is pending before the Agency? ® ** (you are required to supply a copy of the letter with the list of the names of the abutters).** H. Purpose and description of all proposed regulated activity(s) including amount of disturbance in square feet and types of fill and the time element involved: One acre u land review area ss road across to The Shops at Evergreen WAlk. 480 square feet of wetland disturbance o i nst-a i l r„i 1TPrt ire-wetan dS 110 cubic yards of wetlands fill to install culvert. I. A class A-2 map of the property drawn to 1" = 40', showing the area to be developed, extent of the wetlands and watercourses affected, topography, existing and proposed activities and names and locations of adjacent property owners must be submitted. J. Amount of regulated area disturbance and types of fill (including wetlands and regulated buffers). K. Acreage of wetlands and watercourses in regulated areas to be altered: 480 SF L. Acreage of wetlands and watercourses to be created: 0 M. Lineal feet of proposed stream alteration: 0 N. Total land area of project and percentage which is wetlands: Land Area: 85.65 Ac; Wetland Area: 5.840 O. Identify all other permits or approvals that have been issued, applied for, or required with respect to the proposed activity set forth in this application. (These may include but not be limited to, local Planning & Zoning, Zoning Board of Appeals, D.E.P., F.E.M.A., D.O.T., The Army Corps of Engineers, and any other State, Local or Federal Permits.) _ As per approval condition of existing permits by CT Department of Environmental Protection and Army Corps of Engineers, a copy of this application will be sent to the CT Department of Environmental Protection and the Army Corps of Engineers., and the South Windsor Planning and Zoning Commission. 8 ` P, The applicant (or designated representative) hereby attests that a sign will be posted at the following location(s) next to nrozoserl signal at Rurkland Roar? By - App icant Name Alan F. Lamson on or befor the following date 5/2 7/n 4 Signature: - T These signs must be displayed continuously for at least ten (10) days prior to scheduled meeting (see Regulations, Section 7.3a) The undersigned hereby applies for the regulated activities listed in paragraph H above, for a Inland Wetlands, Watercourses and Conservation permit for the property described herein and confirms that: 1. She/he is familiar with the currently effective Inland Wetlands, Watercourses and Conservation Regulations of the Town of South Windsor. 2. She/he understands that at any time during the review period, the Agency may require the applicant to provide more-information -about the -wetlands- and/or- watercourses in question and/or any proposed activity. 3. All information submitted in the application for review shall be considered factual, or in the case of anticipated activity, binding. A knowing failure of the applicant or any of her/his agents to provide correct information, or performance exceeding the levels of activity anticipated, shall be sufficient grounds for revocation of any permit under these regulations. 4. By making this application, the applicant gives permission to the Inland Wetlands, Watercourses and Conservation Commission members and/or its representative to enter the portions of the premises which are subject of the application for the purpose of inspepflon and investigation and otherwise evaluating the merits of the appli ati n bo efore and after a final decision has been issued. S' at re o Ow f Property ergre alk y John Finguerra Date 5/21/04 Its r, uthorized 1 atur o A licant ergre ri al LLC by John Finguerra Date 5/21/04 is Memb r my Authorized r 9 FLB Architecture& Planning,Inc. •19 Silver Lane,East Hartford,CT 061 18 y 860.568.4030 • fax:860.568.5129 • http://home.att.net/—archfib May 21, 2004 via Certified Mail Return Receipt Requested Evergreen Walk, LLC 555 Main St. Manchester, CT 06040 Re: The Shops at Evergreen Walk L.A. Fitness Dear Property Owner: In accordance with Section 7.3b of the "Town of South Windsor Inland Wetlands, Watercourses, and Conservation Regulations", we, on behalf of the applicant, hereby notify you that an application has been filed on property abutting yours and is subject to a hearing by the Inland Wetlands Agency/Conservation Commission. The application and plans are on file with the South Windsor Planning Department. As an abutting property owner, you are invited to the hearing to ask questions and/or give comments. However, you are not required to attend. You may also submit written comments regarding the application prior to the hearing if you so desire. For further information regarding the specific date that this application will be heard, please contact Jeff Folger, the Zoning/Wetlands Enforcement Officer, at the Planning Department (860 644-2511, ext. 253. Very truly yours, Alan F. Lamson, AIA President on behalf of Evergreen Walk, LLC cc Evergreen Walk, LLC a ' Location of Propertv L.A. FITNESS at Evergreen Walk Evergreen Walk Master Association PUD: Unit 12 Evergreen Walk LLC 555 Main St., Manchester, CT 06040 Unit 11 Evergreen Walk LLC 555 Main St., Manchester, CT 06040 Unit 10 Evergreen Walk LLC 555 Main St., Manchester, CT 06040 Unit 5 Evergreen Walk LLC 555 Main St., Manchester, CT 06040 Unit 4 Evergreen Walk LLC 555 Main St., Manchester, CT 06040 Unit 2 Evergreen Walk Lifestyle Centers LLC Attn. Dan Poag 6410 Poplar Avenue, Suite#850 International Place, Tower 2 Memphis, TN 38119 1 P:\Projects\99508.02\FLB_zone\PZC_IWCC_040520\Impacted Properties L.A.F.doc r Abutting Property Owners for L.A. FITNESS at Evergreen Walk Address Owner Mailing Address L different Map/Lot Land Use 151 Buckland Rd. Evergreen Walk, LLC 555 Main St., Manchester, CT 06040 27/15 Vacant 31 Buckland Hills Drive Lowes Home Centers, Inc. P.O. Box 1111, No. Wilkesboro, NC 28656 18/6 Vacant 90 Buckland Rd. M/S Town Line Associates 555 Main St., Manchester, CT 06040 27/11 Single Family 116 Buckland Rd. Buckland Road Assoc. & 395 Buckland Rd, South Windsor, CT 06074 27/10 4F/SF 130 Buckland Rd. Krawski, William 27/9 Single Family 190 Buckland Rd. Reichle, Earl & Barbara 247 Abby Rd., South Windsor, CT 06074 27/8 Vacant 206 Buckland Rd. Syme, Rosemary J. 27/3 Single Family 207 Buckland Rd. Luu Dinh Hoang, Nguygen Trang Thonh 27/2 Single Family 218 Buckland Rd. CIL Realty, Inc. 30 Jordan Lane, Wethersfield, CT 06109 27/4 Single Family 240 Buckland Rd. Croteau, Arlene C. 27/5 Single Family 252 Buckland Rd. Wolf& Guerra, LLC 989 Ellington Rd., S. Windsor, CT 06074 38/10 Single Family 260 Buckland Rd. Wolf& Guerra, LLC 989 Ellington Rd., S. Windsor, CT 06074 38/9 Vacant 296 Buckland Rd. Messiah Evan. Lutheran Ch. 38/8 Single Family 300 Buckland Rd. Messiah Evan. Lutheran Ch. 38/7 Commercial 326 Buckland Rd. Sch iavo ne,Steven&Luca,Kawa 9 Clifton Dr., Simsbury, Ct 06070 38/6 Single Family 335 Buckland Rd. Town of South Windsor 1540 Sullivan Ave., CT 06074 38/13 Vacant Evergreen Walk Master Association PUD: Unit 13 Evergreen Walk LLC 555 Main St., Manchester, CT 06040 Unit 9 Evergreen Walk LLC 555 Main St., Manchester, CT 06040 Unit 8 Evergreen Walk LLC 555 Main St., Manchester, CT 06040 Unit 7 Evergreen Walk LLC 555 Main St., Manchester, CT 06040 Unit 6 Evergreen Walk LLC 555 Main St., Manchester, CT 06040 Unit 3 Evergreen Walk LLC 555 Main St., Manchester, CT 06040 Unit 1 Evergreen Walk LLC 555 Main St., Manchester, CT 06040 1 P:\Projects\99508.02\FLB_zone\AbuttingOwners_L.A.F.doc FLB Architecture & Planning,Inc. •19 Silver Lane, East Hartford,CT 061 18 y A ^ ^�860.568.4030 • fax:860.568.5129 - http://home.att.net/—archflb May 21, 2004 via Certified Mail Return Receipt Requested Town of South Windsor 1540 Sullivan Avenue South Windsor, CT 06074 Re: The Shops at Evergreen Walk L.A. Fitness Dear Property Owner: In accordance with Section 7.3b of the "Town of South Windsor Inland Wetlands, Watercourses, and Conservation Regulations", we, on behalf of the applicant, hereby notify you that an application has been filed on property abutting yours and is subject to a hearing by the Inland Wetlands Agency/Conservation Commission. The application and plans are on file with the South Windsor Planning Department. As an abutting property owner, you are invited to the hearing to ask questions and/or give comments. However, you are not required to attend. You may also submit written comments regarding the application prior to the hearing if you so desire. For further information regarding the specific date that this application will be heard, please contact Jeff Folger, the Zoning/Wetlands Enforcement Officer, at the Planning Department (860 644-121511, ext. 253. Verx truly yours, Alan F. Lamson, AIA President on behalf of Evergreen Walk, LLC cc Evergreen Walk, LLC J. Solts HIGHLAN© uc June 8,2004 RECEIVED Michelle Carlson Fuss&O'Neill;Inc: J U N 10 2004 146 Harlfb4Road South Windsor NSEVcMs sovManchester,CT 06040 CORA ON oMi RE: EVERGREEN WA4K Z.A.FITNESS BUCKLAND-ROAD ' SOUTH WINDSOR CT Dear Michelle: The inland wetland boundaries on the Evergreen Wald property were field delineated in'Muy 2000. The wetlands were fielddelineated in accordance with the standards of the National Cooperative Soil Survey and the definition of wetlands as found in the Connecticut General Statutes,Chapter 440, Section22A-38. I have reviewed the plans prepared by'your office and have found the representation of the field delineated wetlands to be Wbstarttially correct. The wetlands as.part of the application of L.A.Fitness consist of a steep sided watercourse channel. The wetlands in the area of the activity were identified based on the waiercourse definition of wetlands. No wetlands were found on the site of the proposed building and parking facilities. The upland soils on the site of the proposed activity were identified as belonging to the well;drained Enfield Series. If you have any questions,or require additional information,pleadcatll me at•(860) 742-5868. Very tryly yn�� JA ohn P.Ianni Professional$oil Scientist CPESC ,3 cAdocuments and s ngs\highland soi1suet2004\1af1tness.doc { P.O.Box 337,Storrs,tonnocticut 06268 + (860)7d2-5868 Tenelope,C. Sharp ENVIRONMENTAL CONSULTANT RECEIVED 225 Reeds Gap Road East — Northford,CT 06472 1�G�r i C Telephone/Facsimile (203)484-0134 JUN 10 2004 South Windsor INLAND WETLANDS AGENCY CONSERVATION COMMISSION WETLAND REPORT FOR WETLAND # 2 EVERGREEN WALK South Windsor, Connecticut Prepared by Penelope C. Sharp Certified Wetland Scientist#000497 June 6, 2004 APrinted on M Recycled paper INTRODUCTION On January 15,2003 and June 2,2004,field investigations were conducted at property located to the west of Buckland Road and south of Deming Street in South Windsor, Connecticut. The purpose of the investigation was to examine the wetlands on the property and to evaluate the potential impacts upon the wetland resources that may result from the proposed activity. The survey was conducted on foot, and observations were made while walking randomly throughout the wetlands. Data collected included an inventory of vegetation species, an inventory of species of wildlife directly observed, species of wildlife detected USGS Quadrangle—Area Including Subject Property 771 i . .. Cam 1sm so -,q ON/ X'� r'�• 'i_ _ a Y � �` Its { -- ii , „aneszoe 4.r�. by call or song,and evidence of wildlife use such as nests,tree cavities,burrows,tracks, scat, or other signs. Site plan maps, Connecticut Department of Environmental Protection Bulletin No. 4,Atlas of the Public Water Supply Sources and Drainage Basins of Connecticut, and the United States Geological Survey topographical map,Manchester 1 i Quadrangle,were consulted. Wetland evaluations were performed utilizing criteria proposed by the Highway Methodology,US Army Corps of Engineers. The applicant proposes to construct a 45,000 square foot building and associated parking on the property. An access drive known as Evergreen Way will connect this site with the Shops at Evergreen Walk that lie to the south of the subject property. A wetland crossing of Wetland#2 is necessary in order to complete the roadway network. WETLAND DESCRIPTION The property is situated within the Plum Gully Brook watershed. According to the Atlas of the Public Water Supply Sources and Drainage Basins of Connecticut,this watershed is part of the Podunk River drainage basin, which is included in the Connecticut Main Stem Regional Basin. Wetland resources on the property belong to the palustrine ecological system which is one of five systems recognized by the U. S. Fish and Wildlife Service's wetland classification system described in Classification of Wetlands and Deepwater Habitats of the United States, Cowardin, et al. 1979. The classification system is used to describe wetland cover types. The wetlands are best classified as palustrine forested wetlands,broad-leaved deciduous and seasonally saturated. The wetland is a narrow band that is adjacent to a seasonal watercourse. The watercourse is badly eroded in places. Surrounding the wetlands are agricultural fields; however,the wetland and watercourse have not been cultivated and have grown to forest. Mixed hardwood tree species line the banks of the channel. Species include ash, sugar maple,black cherry,box elder,red maple,weeping willow, and cottonwood. Near Buckland Road,there is a dense stand of staghorn sumac trees and several large white pines. Some of the maples and ash are large diameter trees. There is a dense thicket of shrubs and vines present along the banks. Species include oriental bittersweet,multiflora rose,poison ivy, silky dogwood, grape, gray dogwood,northern arrowwood,and pussy willow. Goldenrod,Joe Pye weed, sensitive-fern,blue joint grass, and beggarticks are common herb species within this wetland. WETLAND FUNCTIONS AND VALUES The functions and values analysis in this report follows the Highway Methodology that was developed by the US Army Corps of Engineers. This 2 Methodology uses a descriptive approach and identifies thirteen potential wetland functions and values that may or may not be present within the wetland being studied. Wetland functions are intrinsic properties of a wetland ecosystem and include all processes necessary for sustaining a wetland ecosystem such as primary production and nutrient cycling. Wetland values are benefits derived from one or more wetland functions and the physical characteristics associated with the wetland and are based upon human judgment of the merit or importance of wetland functions. Each function/value is discussed in detail below. The italicized portion provides a definition and explanation of the function as provided in the Highway Methodology Workbook. Following the definition,the evaluation of the subject wetlands with respect to each function is provided. In some cases, a particular function may not be applicable to the wetland. • GROUNDWATER RECHARGE/DISCHARGE This function considers the potential for a wetland to serve as a groundwater recharge and/or discharge area. It refers to the fundamental interaction between wetlands and aquifers, regardless of the size or importance of either. This wetland consists of a narrow band of wetlands adjacent to an intermittent watercourse channel It is underlain by poorly drained soils that are groundwater supported and therefore are groundwater discharge wetlands. • FLOODFLOW ALTERATION This function considers the effectiveness of the wetland in reducing flood damage by water retention for prolonged periods following precipitation events and the gradual release of floodwaters. It adds to the stability of the wetland ecological system or its buffering characteristics and provides social or economic value relative to erosion and/or floodprone areas. The wetland is a narrow band alongside a seasonal watercourse. It is also situated on sloping terrain. Based upon the evidence presented by the severe erosion of the stream,there is little to no floodwater storage occurring within this wetland. Therefore, floodflow alteration is not a primary function of Wetland#2. • FISH AND SHELLFISH HABITAT This function considers the effectiveness of seasonal or permanent watercourses associated with the wetland in question for fish and shellfish habitat. There is no evidence that fish inhabit this watercourse and its seasonal aspect and eroded condition are unsuitable to fish. For these reasons,this function is not applicable for the subject wetland. 3 a PAGE LEFT BLANK 4 • SEDIMENT/TOXICANT RETENTION This function reduces or prevents degradation of water quality. It relates to the effectiveness of the wetland as a trap for sediments, toxicants, or pathogens in runoff water from surrounding uplands, or upstream eroding wetland areas. Mineral soils,erosive flows, and short water duration time within the wetland make it unsuitable for retaining sediments and toxicants. It is therefore unlikely that sediment trapping and pollutant retention are occurring within the wetland. • NUTRIENT REMOVAL/RETENTION/TRANSFORMATION This function considers the effectiveness of the wetland as a trap for nutrients in runoff water from surrounding uplands or contiguous wetlands, and the ability of the wetland to process these nutrients into other forms or trophic levels. One aspect of this function is to prevent ill effects of nutrients entering aquifers or surface waters such as ponds, lakes, streams, rivers or estuaries. It is unlikely that the narrow wetlands and the watercourse, which may flow rapidly during storm events, are effective in nutrient removal/retention/transformation. Water does not remain within the channel for time periods long enough to allow for settling and nutrient uptake to occur. • PRODUCTION EXPORT This function evaluates the effectiveness of the wetland to produce food or usable products for man or other living organisms. This wetland has relatively high vegetation density and a number of shrubs and trees produce seeds and fruits that are attractive to wildlife species. Silky dogwood,highbush blueberry, crabapples, sumac,white pine, ash,and maples produce fruits that are attractive to wildlife;therefore,production export is a moderate function of this wetland. + SEDUVIENT/SHORELINE STABILIZATION This function considers the effectiveness of a wetland to stabilize streambanks and shorelines against erosion. The watercourse is an eroded channel and the wetland does not appear to have alleviated the current condition. Thus, sediment/shoreline stabilization is not applicable for the subject wetland. • WILDLIFE HABITAT This function considers the effectiveness of the wetland to provide habitat for various types and populations of animals typically associated with wetlands and the wetland edge. Both resident and/or migrating species are considered At present,the wetland occurs within a developed and former agricultural landscape; however there remains overland access to other wetlands for some wildlife species. There are also wildlife food resources within the wetland and evidence of wildlife use. Wildlife habitat is one of the primary functions of this wetland/watercourse. It should be noted that there are other wetlands in the immediate vicinity that offer much greater habitat opportunities. 5 • RECREATION(Consumptive and Non-Consumptive) This value considers the suitability of the wetland and associated watercourses to provide recreational opportunities such as hiking, canoeing, boating,fishing, hunting and other active or passive recreational activities. Consumptive opportunities consume or diminish the plants, animals, or other resources that are intrinsic to the wetland. Non-consumptive opportunities do not consume or diminish these resources of the wetland This function is not applicable for the subject wetland. • EDUCATIONAL SCIENTIFIC VALUE This value considers the suitability of the wetland as a site for an "outdoor classroom"or as a location for scientific study or research. This function is not applicable for the subject wetland. • UNIQUENESSMERITAGE This value considers the effectiveness of the wetland or its associated waterbodies to provide certain special values. These may include archaeological sites, critical habitat for endangered species, its overall health and appearance, its role in the ecological system of the area, its relative importance as a typical wetland class for this geographic location. These functions are clearly valuable wetland attributes relative to aspects of public health, recreation, and habitat diversity. This function is not applicable for the subject wetland. • VISUAL QUALITY/AESTHETICS This value considers the visual and aesthetic quality or usefulness of the wetland. The aesthetic values of wetlands are difficult to determine and are frequently subjective. However, it is likely that most reviewers would find Wetland 2 to be low in terms of aesthetic values. A number of invasive plant species are found within the wetland,there is debris within it as well and the eroded portions of the channel are unsightly. • ENDANGERED SPECIES HABITAT This value considers the suitability of the wetland to support threatened or endangered species. This function is not applicable for the subject wetland. PROJECT PROPOSAL AND POTENTIAL HvIPACTS As indicated,the project proposal entails the crossing of a portion of Wetland#2 by an access road known as Evergreen Way. The access is a connector road that will provide traffic circulation between the Shops at Evergreen Walk and the proposed new building. Wetland#2 is a narrow wetland of limited functionality. Its primary functions 6 are groundwater discharge, surface water transport,production export and wildlife habitat,although its habitat value is low in contrast to other wetlands in the vicinity. The crossing of this narrow wetland will impact approximately 480 square feet of the wetland and is not expected to result in any long term irreversible impacts upon the wetland functions. Surface water transport and groundwater discharge will continue and the remaining wetlands will continue to provide wildlife food resources and habitat. Respectfully submitted, ( ""'r C lf Penelope C. Sharp Professional Wetland Scientist 7 06/29/2004 TUE 07:25 FAX 860 644 7280 South Windsor Town Hall 2001 ********************* *** FAX TX REPORT *** ********************* TRANSMISSION OK JOB NO. 1951 DESTINATION ADDRESS 96436313 PSWD/SUBADDRESS DESTINATION ID ST. TIME 06/29 07:24 USAGE T 00' 20 PGS. 1 RESULT OK SOV1N Sgq e w r 70 Z 01P slow ?V&uaot a � = v 9 a` 1540 SULLIVAN AVENUE• SOUTH WINDSOR, CT 06074 �r�OSox•CO TELEPHONE(860)644-2511" To: Michelle Carlson June 28,2004 Fuss&O'Neill Inc. 146 Hartford Road Manchester,CT 06040 From: Jeffrey H.Folger Environmental Planner Town of South Windsor Re: Appl#04-38P.Review of the LA Fitness project,Evergreen Walk-Buckland Road,plans dated 05/19/04. I have reviewed the site plans for the proposed LA Fitness project with the following initial comments: 1. Stone check dams must be placed in.the swale. A detail showing the check dams must be provided that shows 4-6"stone behind 2"stone. 2. .A construction detail must be provided showing tracking in the swale perpendicular to the slope on the sides and parallel to the slope on the bottom. 3. Soil reinforcement matting is to be placed on the bottom of the swale during grass establishment. 4. Please provide a profile of the rip-rap fall section of the proposed swale. 5. What is the expected velocity of flow within the swale?. A 10 to 12 minute travel.time must be achieved with in the swale. cc. Town Engineer Wand Wetland/Conservation Commission Director of Planning FLB Architecture and Planning Inc. MEMORANDUM To: Marcia Banach, Director of Planning From: Jeffrey B. Doolittle, P.E., Town Engineer Date: 6/29/04 RE: App 04-37P, Visions Salon and Spa Site Plan I have reviewed the above site plan application for the Visions Salon and Spa at 207 Buckland Road and I have the following comments: r` 1. ere is a note on the plans about a new 2" water service to be installed prior to the widening of Buckland Road. What is the status of this water service? The road widening is mostly complete in front of this property and we do not want a new pavement cut in Buckland Road. On the Demolition Plan show the limits of excavation necessaryfor the removal septic leach field. al of the V3-11�-Label the temporary utilities for the existing building so it is clear where temporary utilities that are installed in phase 1 will be removed later as part of phase 2 ')'Mhy are all the pine trees adjacent to the northern property line being removed? It would be beneficial to leave as many of these as possible for screening. t 5. Layout Plan includes a note that proposed sidewalk along Buckland Road to be by Who is building this sidewalk? The sidewalk in front of this property needs to be completed before a certificate of occupancy can be issued for the new building. The Town wants a consistent right of way along Buckland Road instead of a permanent easement area for the sidewalk. This area needs to be deeded to the Town of South Windsor with the rest of the right-of-way. Why is there a temporary driveway easement in favor of Poag & McEwen on the western side of this site? --Why is the proposed building so low? It is shown about 7 feet lower than the existing building and about 3 feet lower than the existing ground. Raising the building will reduce the excavation necessary and allow it to be more visible. t, ti � s, ,* Post-it®Fax Note 7671 Date �- pages Z. From fTO �s d Co. � Co./Dept. PT_ / Phone# f Phone# . T )p Z-4/0 Fax# `f1 -: �7 Fax# .i The orientation of the proposed dumpsters will make it veiy difficult if not impossible for a garbage truck to empty them. Check this. I suggest they be turned to be parallel with the properly line. What are the two structures labeled All and AI2 on the northern part of the site? Provide a detail for these. Why is the pipe between the DMH in the north west comer of the site and AI2 sloped to drain to AI2 when the rest of the drainage system drains the other way? The perforated pipe in the low area between the east parking area and the berm should be increased to 6"diameter. 13 I the low area between the road and the east parking area designed to hold water or be .``dry? The detail on Sheet 13 does not label the top substrate in this area. The perforated pipe will drain water from this area. This needs to be clarified. .There needs to be at least 10 feet separating the water and sewer service to the new building. 116.The sanitary manhole labeled as TF 139.25 on sheet 7 needs to be clarified and possibly moved. When will this be constructed because it is not shown on the temporary utility plan. It is too close to the drainage pipe for either to be constructed without impacting the other and therefore needs to be moved at least 10 feet from the drainage pipe. /6.The slope between Buckland Road and the berm is too steep at 2H:1V. This slope should not be more than 3H:1 V. 17. he drainage report needs to be revised to show the pre and post development runoff from the 2, 10, 25, 50, and 100 year storms. There needs to be detention and water quality treatment measures for the stormwater from this property. If the stormwater is discharging through an adjacent developed site it must be shown that the stormwater facilities are sized to handle and treat stormwater from this property. 18 a detail for the 5" concrete sidewalk on sheet 11 needs to be modified to show 8" gravel base. 145heet 11 includes a detail for heavier pavement and base for Truck Access/Entrance :. Section. Show on the plan where this heavy pavement will be installed. 20. treet Excavation Permits must be taken out for each lot by*the contractor before the installation of the driveways and water services. n application must be made to the WPCA for the Sanitary Sewer connections for this Please let me know if you have any questions. Updike, Kelly & Spellacy, P.C. Counselors at Law Please reply to the Hartford Office One State Street,P.O. Box 231277 TT Hartford, Connecticut 06123-1277 TiT M E R I TA 5 Telephone(860)548-2600 LAW FIRMS WORLDWIDE Facsimile(860)548-2680 An Alliance Member One Century Tower, 265 Church Street New Haven, Connecticut 06510-7002 Telephone(203)786-8300 Facsimile(203)772-2037 June 29, 2004 RECEIVED Via Hand-Delivery JUN 3 U 2004 Planning Department SOUTH WINDSOR PLANNING DEPT. South Windsor Town Hall 1540 Sullivan Avenue South Windsor, CT 06074 Re: Freedom of Information Request Dear Sir or Madam: Pursuant to the Connecticut Freedom of Information Act, Conn. Gen. Stat. §§ 1-200 et seq., I hereby request a copy of any and all documents including all filings, applications, plans, requests, studies, reports, e-mails, correspondence and all other public records or files in the possession of the Planning Department of the Town of South Windsor and relating to 1) applications filed with the Inland Wetlands Agency and the Planning and Zoning Commission regarding the Evergreen Walk site for LA Fitness Centers, #04-38P, and 2) applications filed with the Inland Wetlands Agency and the Planning and Zoning Commission regarding the Evergreen Walk site for Visions Spa, #04-37P. Please contact me at 548-2627 at your earliest convenience to arrange for payment and/or pickup of these documents. Very t,my you s, Stepllen R. - of 367122 MEMORANDUM To: Marcia Banach, Director of Planning Jeff Folger, Environmental Planner RECEIVED From: Jeffrey B. Doolittle, P.E., Town Engineer C�� JUN 3 0 2004 Date: 6/30/04 tt// SOUTH WINDSOR PLANNING DEPT. RE: App 04-38P, L.A. Fitness Site Plan I have reviewed the above site plan application for the L.A. Fitness Center at Evergreen Walk on Buckland Road and I have the following comments: 1. The curbing on Cedar Avenue (main driveway) needs to be precast concrete curb in keeping with the other two driveways from Buckland Road to Evergreen Walk (Tamarak and Hemlock Avenues). 2. What is the KR sign at the west end of the median in the driveway? Should there be a matching sign at the east end? 3. Extend the guard rail on the north side of the driveway entrance around the radius. 4. Where is the chain link fence proposed? It is listed in the legend as CL? 5. The paved driveway section that was installed with the road widening will have to be cut back to almost the street line to be constructed according to the grading plan for this site. 6. Provide a gutter flow analysis to show that the catch basins in Buckland Road north of the driveway will handle the surface flow from the driveway entrance and turning lane as well as the roadway. 7. A catch basin needs to be installed on Buckland Road at the south side of the driveway to catch water running along the gutter before it crosses this driveway. This will help prevent ponding and icing problems in the driveway entrance. 8. Include a sidewalk ramp and short section of sidewalk on the south side of the driveway along Buckland Road. 9. Show the span poles, traffic controller cabinet and other features of the traffic signal at the driveway entrance onto Buckland Road to insure they do not conflict with sidewalks, guardrails, etc. Also show the easement for the traffic control equipment 10.Change the size of the pipe from the new CB in Buckland Road to MH 25, MH 26, and MH 27 from 18 inch to 24 inch so it is the same size as the pipe that crosses the road. 11.Provide a gravel access road to the sedimentation chamber or move it closer to the road so it is accessible by truck for cleaning and maintenance. 12.Show where the roof leaders from the proposed building discharge. 13.How was the 30 inch pipe sized where Evergreen Way crosses the drainage ditch? 14. It appears that there is a significant erosion problem in the drainage ditch to the south of the proposed outlet swale. Mitigating measures need to be included to repair and stop this erosion at Evergreen Way and to the west. 15.On the Topographic Map plan sheet CG.1.6 there is a lot of conflict and overlap between the labels. Is this sheet necessary? If so perhaps the utility labels can be turned off. 16.On the Storm Trench Detail include a note that plastic pipe is to be bedded to the spring line with 3/"stone per the Town standard detail. 17.There is a detail for a Sanitary Sewer Drop Manhole but it is not clear where this is proposed? 18.The Buckland Road Widening Section needs to include a slope of%'/ft from the sidwalk to the curb per the Town standard 19.On the Evergreen Way Typical Section — B increase the pavement thickness of layer P to 2 Y2 inches so it is the same as in Section—A. 20.The pipe report in Appendix A of the Drainage Report indicates that the pipe sizes and/or slopes need to be adjusted between CB-5 and CB-17, and between CB-11 and CB-14. Also, the pipe crossing Evergreen Way from CB-18 to CB-17 can be reduced to 15". 21.The Inlet Report in Appendix A of the Drainage Report shows 8.86 feet of ponding in the gutter at CB-15. This is more than a half a lane width and needs to be checked. 22. In Appendix E of the Drainage Report how was 16 cfs selected as the design discharge for the drainage outlet swale? This value does not coincide with the pipe or discharge reports. 23.1 will contact the Engineer with any other drainage questions. 24.An application must be made to the WPCA for this site plan. Please let me know if you have any questions. r r. South Windsor Inland Wetlands Agency/Conservation Commission In the Matter of: July 2, 2004 Application No. 04-38P —LA Fitness at Evergreen Walk Evergreen Walk LLC 151 Buckland Road Gateway Development Zone South Windsor, Connecticut VERIFIED PETITION TO INTERVENE Pursuant to Connecticut General Statutes ("CGS") Section 22a-19, Pavilions at Buckland Hills L.L.C. ("Pavilions at Buckland Hills") hereby intervenes in this administrative proceeding by the filing of this Verified Petition to Intervene and requests that it be granted status as an intervening party in this administrative proceedings before the South Windsor Inland Wetlands Agency/Conservation Commission("IWACC") concerning the proposed development of a large fitness center and accompanying improvements known as LA Fitness at Evergreen Walk. In support of its request, Pavilions at Buckland Hills represents, upon information and belief, the following: 1. Evergreen Walk LLC proposes to construct a 41,613-square-foot fitness center, 310 parking spaces, access roads, walkways, stormwater structures, and associated improvements known as LA Fitness at Evergreen Walk on 85.65 acres located at 151 Buckland Road, South Windsor. Wetlands comprise approximately 5.84%of the proposed site, or approximately 5 acres. The proposed development will require the direct disturbance of 480 square feet of wetlands, the placement of 110 cubic yards of fill in wetlands, and the disturbance of 1 acre of upland review area, and extensive disturbance and construction within 80 feet of wetlands. As part of the process to obtain the necessary approvals to construct the proposal, Evergreen Walk LLC has submitted an application to the IWACC for approval of the proposed development. 2. The IWACC is authorized to grant, grant with conditions, or deny permits"for all uses and activities on inland wetlands and watercourses; and the development, conservation, supervision, and regulation of natural resources within the Town of South Windsor." Inland Wetlands, Watercourses, and Conservation Regulations of the Town of South Windsor, Section 1.3. 3. In its review of the application for LA Fitness at Evergreen Walk, the IWACC will consider"conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state." CGS Section 22a-19. The construction and operation of LA Fitness at Evergreen Walk involves, inter alia, such conduct in one or more of the following ways: 367215 t r a. Direct disturbance of wetlands through construction of permanent structures and the use of heavy equipment within wetlands; b. Filling of wetlands; c. Cutting, stripping, or uprooting of wetlands vegetation; d. Erosion and sedimentation of wetlands through construction activity; e. Erosion of and sedimentation within watercourses; f. Diversion or restriction of flow of watercourses; g. Exacerbation of flooding by inhibiting the function of area wetlands; h. Increase of stormwater flow from the construction and use of impervious surface for parking spaces, access roads, and walkways, which will increase erosion and sedimentation and degrade surface water and groundwater quality; i. Harassment, displacement, and possible wounding and killing of wildlife; j. Destruction of wildlife habitat; k. Utility line traversing, impacting and directly disturbing wetlands; and 1. Future undefined but inevitable short- and long-term impacts given that this proposal is part of larger proposed development. 4. Pavilions at Buckland Hills, in accordance with its rights pursuant to CGS Section 22a- 19, respectfully requests all rights of participation granted to any party within administrative proceedings before the IWACC. The request of Pavilions at Buckland Hills for party status will further the policies and purposes of the Connecticut Environmental Protection Act, CGS Sections 22a-14 through 22a-20. 5. The proposed development of LA Fitness at Evergreen Walk encompasses myriad environmental impacts. The participation of Pavilions at Buckland Hills within the proceedings before the IWACC will advance the public interest in the protection of the natural resources of the state. 6. In accordance with CGS Section 1-227, Pavilions at Buckland Hills requests that it be provided with written notice by mail of all regular and special meetings of the IWACC concerning Application No. 04-38P and/or LA Fitness at Evergreen Walk at least one week before the date of each such meeting, as well as all negotiations pertaining to the above- captioned application. 367215 2 f WHEREFORE, Pavilions at Buckland Hills intervenes in this action on the filing of this Verified Petition to Intervene, requests notice of all meetings, and further requests that its Verified Petition to Intervene be granted. Pavilions at Buckland Hill C. by: John C. , Updike, 11 P.C. 367215 3 • r.. South Windsor Inland Wetlands Agency/Conservation Commission In the Matter of July?i , 2004 Application No. 04-38P—LA Fitness at Evergreen Walk Evergreen Walk LLC 151 Buckland Road Gateway Development Zone South Windsor, Connecticut VERIFICATION I, Scott Miller, as Senior Vice President of Redevelopment of General Growth Management, Inc.,being duly sworn, depose and state under oath that: 1. I am over the age of eighteen years and understand and believe in the obligations of an oath; 2. I am the Senior Vice President of Redevelopment of General Growth Management, Inc.; 3. I have been employed by General Growth Management and other companies engaged in the business of developing shopping centers and other real estate projects for over eight (8) years and while employed in such capacity (a) I have overseen the preparation of plans and applications to governmental agencies for projects similar in purpose and scale to LA Fitness at Evergreen Walk, including applications relating to potential incursions on wetlands or applications which may significantly impact wetlands, (b) I have on many occasions met with consultants expert in environmental protection matters concerning the environmental impacts of shopping centers and other real estate developments and have developed an understanding of the nature and scope of pollution risks associated with real estate developments, (c) I have reviewed the General Plan of Development approved by the South Windsor Planning and Zoning Commission for Evergreen Walk, as well as the application for LA Fitness at Evergreen Walk, and I have conferred with consultants retained by counsel to the Petitioner in connection with the impacts from the proposed development of Evergreen Walk and LA Fitness at Evergreen Walk, including consultants expert in hydrology and civil engineering who have provided me with information characterizing the Evergreen Walk project site, including the portion encompassing LA Fitness at Evergreen Walk and related proposed infrastructure and its proximity to environmentally sensitive areas and (d) I have evaluated the information I have obtained with respect to LA Fitness at Evergreen Walk, as proposed, in light of my extensive experience in real estate development; and 4. 1 have read the foregoing Verified Petition to Intervene and believe the allegations contained within to be true. 367215 Pavilions at Buckland Hills L.L.C. by: ) Scott Miller, Senior Vi& President of Redevelopment General Growth Management, Inc. 110 North Wacker Drive Chicago, Illinois 60606 Subscribed and sworn to before me this -0 A` day of July, 2004. Commissioner of the Superior Court Notary Public My commission expires: t{j j 14 koo(o " OFFICIAL SEAL" CATHERINE A. CANAVAN NOTARY PUBLIC,STATE OF ILLINOIS MY COMMISSION EXPIRES 10/14/2006 367215 2 McCarter&English,LLP CityPlace I John R.Mallin 185 Asylum Street Hartford,CT 06103-3495 Partner 860.275.6700 860.275.6728 fax 860.724.3397 Fax 860.724.3397 www.mccarter.com jmallin@mccarter.com M'CARTER VIA HAND DELIVERY ENG LISH ATTORNEYS AT LAW July 6, 2004 Elizabeth Warren Chairman, Inland Wetlands Agency/Conservation Commission Town of South Windsor 1540 Sullivan Avenue South Windsor, CT 06074 Re: Application of Evergreen Walk, LLC -- L.A. Fitness --Application#04-38P Dear Chairman Warren: Due to an irregularity in the notice of the public hearing regarding the above Application, on behalf of the Applicant, we request that the public hearing originally scheduled for July 7 be postponed and re-noticed by your Commission. We do not believe that this action will require an extension of the statutory period for commencing a public hearing; however, should the Commission request an extension to conform with statutory requirements, the Applicant would be willing to consent to such an extension. Very truly yours, J hn R. Mallin JRM/kam cc: Mr. Jeff Folger—Via Hand Delivery HARTFORD:618431.01097544.00004 Updike, Kelly & Spellacy, P.C. Counselors at Law Hartford New Haven Stamford One State Street,P.O. Box 231277 �, x p )a� xr k, Hartford,Connecticut 06123-1277 T i M E R I TA 5 Telephone(860)548-2600 LAW FIRMS WORLDWIDE Facsimile(860)548-2680 JUL 19 2004 John C.King (860)548-2608. (860)548-2680 Fax TOWN OF SOUTH WINDSOR jking@uks.com July 19, 2004 Mr. Jeffrey H. Folger Environmental Planner/Conservation Officer South Windsor Inland Wetlands Agency/Conservation Commission 1540 Sullivan Avenue South Windsor, CT 06074-2786 Re: Application No. 04-038P—LA Fitness at Evergreen Walk 151 Buckland Road—Verified Petition to Intervene, Pursuant to Connecticut General Statutes §22a-19 Dear Mr. Folger: This office represents Pavilions at Buckland Hills, L.L.C. ("Pavilions"). I enclose and hereby file with the South Windsor Inland Wetlands Agency/ Conservation Commission("IWA/CC") a Verified Petition to Intervene,pursuant to Connecticut General Statutes § 22a-19,whereby the Pavilions at Buckland Hills now intervenes as a party in the administrative proceedings before the IWA/CC concerning Appl#04-38P and associated activities, as set forth in the Verified Petition. Pavilions seeks and is entitled to participatory rights and notices as set forth in Paragraphs 4 and 6 of the Petition. While the statute, § 22a-19,permits party intervention as of right, for purposes of the record and clarity in these proceedings, on behalf of Pavilions, and set forth in the Verified Petition,we request that the IWA/CC acknowledge and grant Pavilions intervening party status as set forth in § 22a-19. We further request that, as a party to App #04-38P, Pavilions be afforded time comparable to that afforded to the applicant so as to enable Pavilions the opportunity to address the application. 368837 Updike, Kelly & Spellacy, P.C. Mr. Jeffrey H. Folger July 19, 2004 Page 2 Thank you for your courtesy and cooperation. Should you have any questions or comments,please do not hesitate to contact the undersigned. Very 1 yours, j JO ..N G JCK/daz Enclosure cc: Barry D. Guliano, Esq. (w/enc.) Ms. Deborah Reid, Recording Secretary(w/enc.) 368837 r 40L r. South Windsor Inland Wetlands Agency/Conservation Commission In the Matter of. July 2, 2004 Application No. 04-38P—LA Fitness at Evergreen Walk Evergreen Walk LLC 151 Buckland Road Gateway Development Zone South Windsor, Connecticut VERIFIED PETITION TO INTERVENE Pursuant to Connecticut General Statutes ("CGS") Section 22a-19, Pavilions at Buckland Hills L.L.C. ("Pavilions at Buckland Hills")hereby intervenes in this administrative proceeding by the filing of this Verified Petition to Intervene and requests that it be granted status as an intervening party in this administrative proceedings before the South Windsor Inland Wetlands Agency/Conservation Commission("IWACC") concerning the proposed development of a large fitness center and accompanying improvements known as LA Fitness at Evergreen Walk. In support of its request, Pavilions at Buckland Hills represents, upon information and belief, the following: 1. Evergreen Walk LLC proposes to construct a 41,613-square-foot fitness center, 310 parking spaces, access roads, walkways, stormwater structures, and associated improvements known as LA Fitness at Evergreen Walk on 85.65 acres located at 151 Buckland Road, South Windsor. Wetlands comprise approximately 5.84% of the proposed site, or approximately 5 acres. The proposed development will require the direct disturbance of 480 square feet of wetlands,the placement of 110 cubic yards of fill in wetlands, and the disturbance of 1 acre of upland review area, and extensive disturbance and construction within 80 feet of wetlands. As part of the process to obtain the necessary approvals to construct the proposal, Evergreen Walk LLC has submitted an application to the IWACC for approval of the proposed development. 2. The IWACC is authorized to grant, grant with conditions, or deny permits "for all uses and activities on inland wetlands and watercourses; and the development, conservation, supervision, and regulation of natural resources within the Town of South Windsor." Inland Wetlands, Watercourses, and Conservation Regulations of the Town of South Windsor, Section 1.3. 3. In its review of the application for LA Fitness at Evergreen Walk, the IWACC will consider"conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state." CGS Section 22a-19. The construction and operation of LA Fitness at Evergreen Walk involves, inter alia, such conduct in one or more of the following ways: 367215 fi a. Direct disturbance of wetlands through construction of permanent structures and the use of heavy equipment within wetlands; b. Filling of wetlands; c. Cutting, stripping, or uprooting of wetlands vegetation; d. Erosion and sedimentation of wetlands through construction activity; e. Erosion of and sedimentation within watercourses; f. Diversion or restriction of flow of watercourses; g. Exacerbation of flooding by inhibiting the function of area wetlands; h. Increase of stormwater flow from the construction and use of impervious surface for parking spaces, access roads, and walkways, which will increase erosion and sedimentation and degrade surface water and groundwater quality; i. Harassment, displacement, and possible wounding and killing of wildlife; j. Destruction of wildlife habitat; k. Utility line traversing, impacting and directly disturbing wetlands; and 1. Future undefined but inevitable short- and long-term impacts given that this proposal is part of larger proposed development. 4. Pavilions at Buckland Hills, in accordance with its rights pursuant to CGS Section 22a- 19,respectfully requests all rights of participation granted to any party within administrative proceedings before the IWACC. The request of Pavilions at Buckland Hills for party status will further the policies and purposes of the Connecticut Environmental Protection Act, CGS Sections 22a-14 through 22a-20. 5. The proposed development of LA Fitness at Evergreen Walk encompasses myriad environmental impacts. The participation of Pavilions at Buckland Hills within the proceedings before the IWACC will advance the public interest in the protection of the natural resources of the state. 6. In accordance with CGS Section 1-227, Pavilions at Buckland Hills requests that it be provided with written notice by mail of all regular and special meetings of the IWACC concerning Application No. 04-38P and/or LA Fitness at Evergreen Walk at least one week before the date of each such meeting, as well as all negotiations pertaining to the above- captioned application. 367215 2 WHEREFORE, Pavilions at Buckland Hills intervenes in this action on the filing of this Verified Petition to Intervene, requests notice of all meetings, and further requests that its Verified Petition to Intervene be granted. Pavilions at Buckland Hills C. by. John C. , Updike, �elll P.C. 367215 3 South Windsor Inland Wetlands Agency/Conservation Commission In the Matter of July-Zi , 2004 Application No. 04-38P—LA Fitness at Evergreen Walk Evergreen Walk LLC 151 Buckland Road Gateway Development Zone South Windsor, Connecticut VERIFICATION I, Scott Miller, as Senior Vice President of Redevelopment of General Growth Management, Inc.,being duly sworn, depose and state under oath that: 1. I am over the age of eighteen years and understand and believe in the obligations of an oath; 2. I am the Senior Vice President of Redevelopment of General Growth Management, Inc.; 3. I have been employed by General Growth Management and other companies engaged in the business of developing shopping centers and other real estate projects for over eight (8)years and while employed in such capacity(a) I have overseen the preparation of plans and applications to governmental agencies for projects similar in purpose and scale to LA Fitness at Evergreen Walk, including applications relating to potential incursions on wetlands or applications which may significantly impact wetlands, (b) I have on many occasions met with consultants expert in environmental protection matters concerning the environmental impacts of shopping centers and other real estate developments and have developed an understanding of the nature and scope of pollution risks associated with real estate developments, (c) I have reviewed the General Plan of Development approved by the South Windsor Planning and Zoning Commission for Evergreen Walk, as well as the application for LA Fitness at Evergreen Walk, and I have conferred with consultants retained by counsel to the Petitioner in connection with the impacts from the proposed development of Evergreen Walk and LA Fitness at Evergreen Walk, including consultants expert in hydrology and civil engineering who have provided me with information characterizing the Evergreen Walk project site, including the portion encompassing LA Fitness at Evergreen Walk and related proposed infrastructure and its proximity to environmentally sensitive areas and (d) I have evaluated the information I have obtained with respect to LA Fitness at Evergreen Walk, as proposed, in light of my extensive experience in real estate development; and 4. I have read the foregoing Verified Petition to Intervene and believe the allegations contained within to be true. 367215 Pavilions at Buckland Hills L.L.C. by: Scott Miller, Senior Vicb President of Redevelopment General Growth Management, Inc. 110 North Wacker Drive Chicago, Illinois 60606 Subscribed and sworn to before me this ZA4day of July, 2004. Commissioner of the Superior Court Notary Public My commission expires: E ICIAL SEAL° RINE A. CANAVAN PUBLIC,STATE OF ILLINOIS ►SSION EXPIRES 10/14/2006 367215 2 1540 Sullivan Avenue,South Windsor,CT 06074 PH 644-2511 ext 253 Fax 644-7280 South • • Planning Department Fci x To: Attorney John C. King From: Marcia A. Banach, Director of Planning Fax: 548-2680 Pages: 1 Phone: Date: 07/20/04 Re: Intervenor Petitions—LA Fitness,Visions CC: Barry Guliano,Town Attorney ❑ Urgent ❑ For Review ❑Please Comment ❑Please Reply ❑Please Recycle Just a reminder that intervenor petitions submitted to the Planning and Zoning Commission on July 6, 2004,for both the LA Fitness and Visions Spa applications are lacking original petitioner signatures on the verification sheet. Town Attorney Barry Guliano has informed us that this is a deficiency in the petition. The intervenor petition submitted to the Inland Wetlands Agency/Conservation Commission on June 21 for the Visions Spa application is also lacking an original petitioner signature on the verification sheet. Please note that it is possible that the IWA/CC will close their public hearing on Visions at their meeting on July 21; thus, it is important that this deficiency in the intervenor petition be corrected in time to be submitted at the July 21 meeting if you wish to have the petition Y ton accepted. P p IF FLB Architecture & Planning, Inc. 19 Silver Lane East Hartford CT 06118 (860)5684030 fax: (860)568-5129 e-mail:flb@flbarch.com web:www.fibarch.com July 21, 2004 Inland Wetland Agency/Conservation Commission Town of South Windsor 1540 Sullivan Avenue South Windsor, CT 06074 Re: L.A. Fitness Application#04-38P Dear Commission members, This letter shall serve as the agreement by the applicant to extend the time for completion of the public hearings on the subject application to Thursday, September 2, 2004. ery truly yours, /C) - Alan F. Lamson President c: file Atty. John Malin Evergreen Walk, LLC P:\Projects\99508.02\FLB—Zone\IWCC-040721.Doc ENSR International 2 Technology Park Drive 11 Phelps Way/PO Box 506 Westford,MA 01886 Willington,CT 06279 (978)589-3000 (860)429-5323 FAX(978)589-3035 FAX(860)429-5378 www.ensr.com July 21, 2004 John King, Esquire Updike, Kelly and Spellacy, P.C. One State Street P.O. Box 231277 Hartford, CT 06123-1277 Re: L.A. Fitness at Evergreen Walk, 151 Buckland Road, South Windsor, CT Review of Proposed Grading and Storm Water Management Design Dear Attorney King: As requested, ENSR has conducted an initial review of the project plans and associated documents filed with the South Windsor Inland Wetlands, Watercourses and Conservation (IWWC) application for the above-referenced project. At this point, our review has focused on the proposed grading of the site relative to wetland resource areas identified on the site plans, and the proposed management of storm water runoff from the site. Based on ENSR's review of the application, design drawings, and associated information we have received to date, we offer the following comments: 1. The project proposes to 'Collect stormwater runoff and discharge it to a roughly 640-foot long created swale that runs downslope parallel to a watercourse/wetland southwest of the development area. It is unclear why this option of stormwater conveyance was selected, as other options would appear to be available that would result in less disturbance to wooded Upland Review Area, provide better stormwater management, and have less potential for sediment and erosion issues during construction as well as having more practicable and reliable long-term maintenance procedures. 2. The lower 450 feet of this proposed swale requires cutting through upland woodland that is entirely within the Upland Review Area and immediately adjacent to the wetland/watercourse. No information appears to have been provided regarding the soil and habitat conditions within this wooded URA to provide an understanding of its existing functions at protecting/contributing to the conditions within the adjacent wetland/watercourse. The loss of this woodland URA, as well as the grading and associated work activity along roughly 700 linear feet of watercourse, poses unnecessary potential impact and long-term performance issues that appear to be readily avoidable with alternative designs. The Wetland Report submitted by Penelope Sharp with this application does not refer to the proposed stormwater swale cuffing through this wooded URA. c EKM@ ENSR International Iteuiew of 1-A Fitness at 1~vergreen.Walk, South Windsor, CT Page 2 3, Construction of the swale will require a grading cut of roughly five feet within 50 feet of the existing watercourse in the central stretch of the swale; evaluation of the potential effects on the water regime of the wetland/watercourse from this grade change should be required. Further, along this central portion of the swale the existing watercourse is shown on the plans to be outside of the delineated wetland line; this should be clarified by the applicant. 4. It is also not clear that construction of the stormwater swale can be accomplished within the clearing envelope that has been outlined on the plan. Constructing a linear Swale of this length through a roughly 60-foot wide clearing of trees would require a carefully considered construction sequence that will allow all work to satisfactorily completed from the lowest filter berm at the bottom of the swale moving upgradient to its top. Further,from a long-term perspective, should maintenance measures be needed along the swale due to erosion, sediment accumulation, or other reasons, it will be difficult to gain access with equipment to the lower parts of the swale without either causing disturbance to the upper portions or conducting more extensive clearing along the wooded URA. 5. Under current conditions, the area proposed for development by this application drains overland due west to a different headwater watercourse than the proposed drainage is being directed to. The proposed stormwater drainage plan diverts this drainage to the southwest to a more southern watercourse. The effects of this drainage alteration on the watercourses and wetlands should be evaluated. 6. The proposed use of a relatively high-gradient swale provides for no opportunity to control the peak rate of runoff from the site. Consequently, as demonstrated in the drainage report for the application,there are notable increases in peak discharges from the"project site". For example, 10-year storm discharges are shown to roughly double (from 12.68 cfs to 24.27 cfs). The impacts of these increased discharges on the watercourse should be evaluated. We note that the Sharpe report states that this"watercourse is badly eroded in places." The proposed increases in flow could exacerbate this condition, resulting in increased sedimentation downstream in Plum Gulley Brook and its wetlands. 7. While the drainage information provides projected flow changes in Plum Gulley Brook downstream of this development site,as ENSR has commented on previously the modeling used for that larger watershed analysis has not been made available for review by us; our previous comments on this would therefore continue to apply. 8. Rain gardens are indicated on the plans, but there does not appear to be any information documenting that they have been sized and distributed to be effective. S. While the Evergreen Walk master plan showed a development footprint on this development area that appears comparable to that currently proposed, it did not d 1 E ENSR International Review-vf'LA Fitness at x'vergreen. Walk, South Windsor, CT Page 3 indicate the proposed disturbance in the wooded URA currently proposed for the stormwater Swale. Additional office buildings and parking are indicated on the master plan west of the L.A. Fitness site,with additional encroachments into wetland buffers even before the siting of stormwater management facilities. Stormwater management controls for this additional development will likely require additional encroachment toward wetlands and watercourses, and result in additional peak rates of flow if treated in a manner as currently proposed. As we have recommended previously, a more comprehensive consideration of the stormwater runoff from each subwatershed under the full development program is in order to avoid the effects of piecemeal development without master drainage planning. We note that the application form for this site describes the"land area of this project"as 85.65 acres; if subsequent development is proposed on this land area as indicated in the master plan, each separate building and related parking/roadway area should not be addressed as distinct proposals. As a result of these considerations, ENSR recommends that an alternative method of stormwater management be considered for this phase of site development. A stormwater detention basin, designed per the CTDEP standards, located in the open field portion of the site immediately adjacent to the proposed development area would appear to be a preferred alternative, addressing virtually all the issues discussed above. It would eliminate impacts to the wooded URA, have less potential for sediment/erosion control issues during construction, simplify long-term maintenance procedures, provide peak rate control and improved water quality treatment. Such a stormwater basin could discharge at the proposed roadway crossing to result in no additional impacts to wetland areas, provided that the diversion of runoff away from the watercourse north of this area is demonstrated to be insignificant(see comment#5 above). It is our opinion that this would be a prudent and feasible alternative to the currently proposed plan that would reduce impacts to wetland/watercourse and buffer areas. Please contact me with any questions regarding these comments. Sincerely, ENSR Dennis Lowrywr Senior Program Manager/Ecologist McCarter&English,LLP I ' CityPlace I j 185 Asylum Street Charles D.Ray Hartford,CT 06103-3495 Partner 860.275.6700 860.275.6774 fax 860.724.3397 Fax 860.724.3397 www.mccarter.com cray@mccarter.com McCARTER July21, 2004 ENGLISH ATTORNEYS AT LAW South Windsor Inland Wetlands Agency/ Conservation Commission 1540 Sullivan Avenue South Windsor, CT 06074 Re: Application 04-38P, Evergreen Walk, LLC Ladies and Gentlemen: As counsel for Evergreen Walk, LLC, we do not believe the Commission should grant a petition to intervene pursuant to Connecticut General Statutes § 22a-19 from Pavilions at Buckland Hills, LLC (`Buckland Hills"). Section 22a-19 provides the public with the ability to protect the environment by allowing individuals to act as a private attorney general and to intervene in administrative proceedings in order to challenge activities that will result in an unreasonable effect on the environment. We do not believe that the statute was intended to provide a vehicle (that would otherwise be unavailable)to advance corporate economic interests. In this matter, we believe that Buckland Hills seeks to intervene in these proceedings in order to advance its own economic interests and is,therefore, abusing the intervention provisions of Section 22a-19. We make this assertion based on a number of documents that were disclosed in related litigation. Those documents establish, we believe, that Buckland Hills seeks to intervene in this proceeding not because of any concern it might have in the natural resources of Connecticut. Instead, the documents reveal,we believe, that Buckland Hills seeks to intervene in these proceedings in an effort to delay or stop construction at the Evergreen Walk development, all for the benefit of its own Buckland Hills Mall. Enclosed herewith please find a memorandum discussing more fully the requirements of Section 22a-19 and the attached electronic mail evidence demonstrating what we believe to be Buckland Hills' true motives. Sincerely yours, Charles D. Ray Enclosure HARTFORD:618417.01 MCCARTER & ENGLISH,LLP MEMORANDUM TO: South Windsor Inland Wetlands Agency/Conservation Commission FROM: Evergreen Walk,LLC DATE: July 19, 2004 RE: Application 04-38P,Evergreen Walk, LLC Evergreen Walk,LLC ("Evergreen Walk") owns the real property located in the Town of South Windsor(the"Town"), Connecticut, on the west side of Buckland Road, on which Evergreen Walk proposes to develop an"L.A. Fitness Center." Pavilions at Buckland Hills, LLC (`Buckland Hills"),the owner of the Buckland Hills Mall, now attempts to file a petition to intervene in this application based on Conn. Gen. Stat. § 22a-19, as it has done in other Evergreen Walk applications. As in the past,the alleged purpose of this intervention is to raise environmental issues related to the Evergreen Walk project. There can be no dispute that Evergreen Walk's proposed development will compete with the shopping mall owned by Buckland Hills; but based on documents disclosed by Buckland Hills in discovery in an appeal related to another Evergreen Walk application, it is evident that Buckland Hills' intervention in this matter is nothing more than part of a grand scheme concocted by Buckland Hills, its parent corporation(General Growth Properties ("GGP")), and a related r ,^ r corporation(General Growth Management("GGM"))to protect their collective economic interests in the Buckland Hills mall. That information discloses the following: • On July 16, 2002, John McGourty(of GGM) invited Nancy Murray(the manager of the Buckland Hills mall)to meet with him the following week. According to Mr. McGourty, "[y]esterdays phone call and Steve's challenge to `KICK BUTT' has given me some thoughts as to possible avenues to explore and delay the lifestyle center." (Appendix("App.") at Al.) On July 18,2002, McGourty sent an email message to Murray(and copied to a large number of GGP/GGM employees)the subject of which was: `Buckland vs Evergreen Walk." (App. at A2.) McGourty begins his email by stating: "NO MORE MISTER NICE GUY!! ' (App. at A2.) McGourty goes on to pose a number questions related to his premise that"[w]e should think of any avenue that we can travel to find ways of increasing the viability of the Buckland Hills project[.]" (App. at A2.) • Included in the issues McGourty posed to Murray was the"[n]eed to come up with of tenants(sic)that Mike and his team will attack to keep or have them negotiate with SMITH for lower rents and more TA at the Evergreen project and use up their capital." (App. at A2.) McGourty also asked: "Have there ever been sighting of eagles,nesting birds, vernal pools, wild life . . . . . . . on this large parcel? (App. at A2.) McGourty closes by asking Murray to "please forward any 2 r ' a � other ideas that we can use to to (sic) accomplish our goal." (App. at A2.) Ms. Murray provided her answers to McGourty's (and the other recipients) in a return email. (App. at A3-A4.) Included was her answer to McGourty's question regarding eagles,nesting birds, vernal pools, and wild life: "We are trying to find the dinasaur bone that was found when the mall was built and sharing it." (App. at A4.) • On July 26, 2002, Mr. McGourty reported to the GGP/GGM group the results of his meeting with Nancy Murray. Once again, McGourty's email was titled "Buckland Hills vs. Evergreen Walk." (App. at A5.) McGourty also reported that the purpose of the meeting was "to review the possible avenues to explore in order to delay or impede the Evergreen Walk project to the benefit of BHM." (App. at A5.) Among the items reported to the group that would serve this goal were the following: 2. Plans should be reviewed for wetlands compliance. It appears the edge of pavement is within the minimum set back of permitted disturbance. We should research Conn and S. Windsor law for the proper compliance of set back and any other restrictions for development within the wetland buffers. The further back we can push the edge of pavement it will reduce the parking fields and or building sizes. 3 r r t r 3. Nancy has heard that the project needs to be 60[%] committed before construction financing will be issued. The letter from leasing to the selected retailers for reconsideration to join Buckland could delay this % being met by EGW. 7. LONG SHOT SPECIAL . . . . . . . . Find a group of dinosaur lovers that feel there are bones or remains on the site. Request that the excavation be carefully monitored to preserve any findings. Land should systematically be worked, sifted by machines and reviewed by the group. Delay, $$$ 8. Nancy will obtain the names of board members of the P&Z Commission. There is a possibility at least one of the members is not in total favor of the project or wants to separated (sic) from the other members. Try to encourage through someone that the issues of concerned(sic)be raised from the floor. This members vote will not prevent the approval of the permits but could add some additional conditions costing time and$$$. (App. at A5 (emphasis added).) • While McGourty, Murray, and others appear to have been brainstorming the means by which GGP could delay or impede the Evergreen Walk project, others were working on ways to explain GGP's efforts to the public and on ways to drum up community opposition to the project. Toward this end, a conference call was held on October 30, 2002 between several non-attorney employees of Updike Kelly and Julie Jacoby, GGP's corporate communications director,who was asked to assist in the Evergreen Walk matter. Ms. Jacoby's notes reflect that the group discussed alerting the Audubon Society and other similar groups, as well as 4 neighbors of the proposed project. (App. at A7.) One of the other points raised by the group was: "Growth will happen--but at our mall instead of another development." (App. at A7 (emphasis added).) • Jacoby eventually wrote a series of discussion points in question and answer format, which were to be used by GGP/GGMBuckland Hills to field inquiries that Jacoby anticipated might be forthcoming from the press or others. (App. at A9-Al5.) Included among the anticipated questions was: "Why are you funding an opposition group?" (App. at AI I &A14.) In the second iteration of these talking points, Jacoby included: "Its our responsibility to look out for the best interest of our retailer. . . . to make and keep the mall shopable. (App. at Al2 (emphasis in original).) A similar speaking point was created in December, 2002. (App. at A16.) Once again, GGP/GGMBuckland Hills employees were informed that by opposing the Evergreen Walk project, `Buckland Hills Mall Management and General Growth Properties are looking out for the best interest of our retailers." (App. at A16.) • As a suggested response to the question"[w]hy are you appealing,"Jacoby suggested the following answer: We've taken this action, we're not happy about it but it's necessary because once again the town[is]not allowing for a fair hearing of the 5 facts . . . whether this million dollar footprint of steel is the best thing for the area at this time. Points to a pattern of incompetence. A pattern of trying to rush this project through . . .and that's not good for anyone . . . the neighbors, the city,the area businesses. (App. at A15 (emphasis added).) • Fliers approved by Ms. Jacoby were created and sent to neighbors of the proposed Evergreen Walk project. (App. at A17-A18.) Among the assertions made by GGP in these fliers were that the Evergreen Walk development"will affect your property values,the scenic beauty of the area,traffic, commerce and your way of life." (App. at A17.) The materials also asserted that the "project will cover precious natural resources, including the Podunk Watershed area,the Plum Gulley Creek and the Podunk and Connecticut Rivers." (App. at Al7.) • Ms. Jacoby's various notes also include a January 15, 2003 notation that GGP was"[t]rying to get Army Corp. of Engineers involved. We have a redevelopment scheduled to begin in March and complete in August. We live in a partially glass house-could face some opposition of our own. But it should not delay us much." (App. at A19.) Ms. Jacoby's notes also reflect that a person at GGP/GGM had the intention of talking to an Evergreen Walk principle"about potential joint ventures(Evergreen Walk)" These same notes reflect GGP's belief 6 that"[w]e've had quite a bit of success so far," as measured by the fact that "[t]hey should have had approvals in November . . . and its already January." (App. at A20.) The notes conclude with Jacoby's belief that"[w]e now live in a partially glass house,"based on the renovation plans that were in place for the Buckland Hills mall. (App. at A20.) • The final piece in GGP's plan to deep-six Evergreen Walk were its efforts to entice retailers to either remain at the mall, come to the mall instead of to Evergreen Walk, or if committed to Evergreen Walk,to "jump ship"to the mall. On February 13, 2003, Michael McNaughton(a GGP regional vice president) reported to Libby Lassiter and Darryl Bonner that several months ago he had brought up the prospect of a"last ditch" effort"to sway the retailers away from Evergreen Walk." (App. at A21 (emphasis added).) McNaughton observed that: "As springtime approaches and Evergreen continues to delay, I think we may have an opportunity to revisit the retailers and hit them in their wallet." (App. at A21.) The next portion of McNaughton's memo has been redacted by GGP, but McNaughton concludes by observing that: "This is a dangerous undertaking. If we lose, it's over(unless our other activity with Bob works), but at this point there is only upside." (App. at A21 (emphasis added).) 7 r • On March 4, 2003, Libby Lassiter, another senior GGP/GGM employee reported to a large group of fellow employees that: "We have been making some pretty significant legal headway in delaying the Evergreen Walk project." (App. at A22 (emphasis added).) Lassiter reported that along the lines of McNaughton's "last ditch" effort, "Bob wants us to take this show on the road now and make some key deals even if we have to with very tough economics." (App. at A22 (emphasis added).) On July 21, 2003, McNaughton reported to group that included GGP's CEO, its COO, and its CFO,that his approach in regard to Buckland Hills"has been to focus on 3 key retailers who either have not signed leases with Poag&McEwan or who are willing to jump ship." (App. at A23 (emphasis added).) Poag&McEwen is the developer of the Lifestyle Center that is being constructed as part of the Evergreen Walk project. Another GGP document reveals that another retailer had"agreed to revisit our project at the end of the summer if the Evergreen project gets delayed. (App. at A24 (emphasis added).) • By November, 2003,however, GGP's efforts to entice key retailers away from the Evergreen Walk project had been deemed a failure. Thus, on October 31, 2003, Lassiter reported to John Bucksbaum(GGP's CEO)that the"news regarding leasing to the key prospects is not good . . . ." (App. at A26.) Lassiter s 1 assumed"that our legal efforts will continue,however at this time we believe it is appropriate to proceed with leasing." (App. at A26.) In response, Bernie Freibaum(GGP's CFO)thanked Lassiter and her team for their efforts and then stated that"[e]ven though Plan A does not appear to be attainable Buckland should still do ample business when you execute Plan B." (App. at A25.) Mr. McNaughton, concludes that"we would have won"if Lassiter had been involved sooner and that"[wle'll get-em next time." (App. at A25 (emphasis added).) • The final word heard on the entire issue comes,however, from Scott Miller, who on January 21, 2004,reported to McNaughton: "Ok. There have been some interesting developments at Superior Court. I smell fear." (App. at A27 (emphasis added).) Connecticut General Statutes § 22a-19 of the Connecticut Environmental Protection Act ("CEPA") is intended to provide the public with the ability to protect the environment by acting as a private attorney general. Thus,the statute provides intervention rights to those private parties "asserting that the proceeding or action for judicial review involves conduct which has, or which is likely to have,the effect of unreasonably polluting, impairing or destroying the public trust in the air,water or other natural resources of the state." (Emphasis added.) Based on its plain language,the statute was not intended to provide a vehicle for a competitor such as Buckland Hills to delay, impede, or otherwise oppose a proposed development in order to protect 9 r its own corporate economic interests in an anticompetitive manner. Despite the clear mandate of the legislation, Buckland Hills is taking advantage of the intervention rights granted under § 22a- 19 in an effort to entice retailers to open stores at Buckland Hills mall rather than at the Evergreen Walk project. Section 22a-19 was adopted as part of CEPA, in 1971. Specifically, section 22a-19 provides: (a) In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law,the attorney general, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state. (Emphasis added.) Section 22a-19 grants standing to intervenors so that they may raise environmental concerns within the jurisdiction of the particular administrative agency conducting the proceeding to which the party seeks to intervene. Nizzardo v. State Traffic Commission et al., 259 Conn. 131, 148 (2002). "An intervening party under § 22a-19,however,may raise only environmental issues." Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 715 (1989). At the time CEPA was passed,there were only one or two Assistant Attorney Generals working part-time on environmental issues. Joint Standing Committee Hearing, Environment, 10 February 19, 1971,p. 222. Due to an upsurge of environmental awareness, section 22a-19 was enacted to expand"the right of a person to have access to the courts when property which we might say belongs to all of the public is jeopardized by the alleged polluting activity . . . . Consequently, some of the most beautiful aspects of our environment, some of those most vital not only to our survival, but to that of future generations are such that they do not lend themselves to a proprietary of personal interest and this bill makes the guaranteeing and the preservation and the protection of these rights available to the general public which they are not presently under our law." Connecticut General Assembly Debate (House), March 16, 1971,p. 739. In Hyllen-Davey v. Plan&Zoning Commission, 57 Conn. App. 589 (2000),the Appellate Court examined CEPA, Conn. Gen. Stat. §22a-14 et seq.,to determine if it gave standing to a nonparty in an administrative agency proceeding to initiate an appeal from that agency's decision when no party to the agency proceeding had themselves appealed. The Appellate Court acknowledged that before CEPA and Conn. Gen. Stat. § 22a-19 were passed, Connecticut citizens could only act to protect the environment if they could show a personal aggrievement to obtain standing. Id. at 592. In reviewing the legislative history of CEPA,the Appellate Court observed that the legislation was intended to redress this deficiency. Thus,the Appellate Court observed that"[i]n essence,the [C]EPA allows Connecticut citizens and organizations to act as private attorneys 11 general,protecting the public trust in a manner that the state, with its limited resources could not achieve." Id. at 594. In Hyllen-Davey, the plaintiffs utilized the private attorney general privileges of CEPA in an attempt to have a town plan and zoning commission's approval of a subdivision application reviewed because an endangered species of rattlesnake occupied the property. As demonstrated in Hyllen-Davey, CEPA was intended to allow intervention rights only to those private parties who are genuinely acting as private attorneys general that than pursuing a private remedy. See Grand East Properties v. Phillips,No. CV-94-0364608, 1996 WL 151229 at *2 (Conn. Super. March 4, 1996) (private parties can bring suit under 42 U.S.C. § 6991 et seq. "only if they are acting as private attorneys general rather than pursuing a private remedy") (App. at A28); Environmental Defense Fund, Inc. v. Lampher, 714 F.2d 331, 337 (4th Cir. 1983) (injunctive relief available under the federal Resource Conservation and Recovery Act of 1976 provided plaintiffs "are genuinely acting as private attorneys general rather than pursuing a private remedy."); Commerce Holding Co., Inc. v. Buckstone, 749 F. Supp. 441,445 (E.D.N.Y 1990) (same). Here, however, Buckland Hills is pursuing this matter as a purely private remedy under the guise of a CEPA action. More precisely, Buckland Hills is abusing the intervention privilege granted under § 22a-19 by attempting to use that privilege for the purely anti-competitive purpose of turning the delay engendered by its intervention in this and other cases to its 12 � f advantage in its efforts to delay or impede the Evergreen Walk project, all so that it can protect its investment in the Buckland Hills mall. As set forth above, Buckland Hills' and GGP's efforts have included, at the very least,plans to: 1) interfere with Evergreen Walk's construction financing; 2) "share" dinosaur bones with Evergreen Walk; 3) drum up neighborhood opposition to the project; 4) search out other groups to oppose the Evergreen Walk project, in the hope that those efforts might delay the project and cause Evergreen Walk to expend additional funds; 5) seek to have Evergreen Walk's parking and floor space limited; and 6) encourage members of the South Windsor Planning&Zoning Commission to oppose the project, in the hope that such opposition will cause delay, impose conditions, or cost Evergreen Walk additional money. All of these activities were intended to cause delay to the Evergreen Walk project, so that GGP could recoup its redevelopment expenditures at the Buckland Hills mall, by enticing retailers to agree to come to the mall or to "jump ship"if they had already committed to open stores at Evergreen Walk. In this regard,the most telling comments are those of Ms. Jacoby and Ms. Lassiter,who both make clear that the success of GGP's efforts in this matter is directly related to the length of the delay that GGP's shenanigans have caused. (App. at A20 &A22.) Under these circumstances,where the abuse of CEPA is manifest and obvious,the Commission should bring Buckland Hills' shenanigans to an end,by rejecting their petition to intervene unless and until adequate proof of appropriate intentions is revealed. 13 ' a y From: John McGourty on 07/16/2002 06:30 pM EDT TO t4ar'W Murray/General Growth Mgmt lncAJSQGG" Subject: visit Will you be available next Wednesday,July 23 in the am for me to stop by?Yeserdays Phone call and Steve`s challenge to"KICK BUTT"has given me some thoughts t to Possible avenues 10 explore and delay the lifestyle center.I would be there from 8:301sh to noon, then drive to Boston for a 3:15 flight- THOUGHTS DEPOSITION EXHIBIT 2410 Al From: John McGourty on 07/18/200210..08 AM EDT To: Nancy Murray/General Growth Mgmt Inc AJS@GGMI Co. Steve Yenser/General Growth 6"IndIUS@GGMI,David C Nelson(General Growth Mgmt IndUS@GGMI,Soott Miller/General Growth Mgmt IncAJS@GGMI,Joan - Ma"Generai Growth Mgmt Inc,AlS@GGMI,Michael McNaughton/General Growth Mgmt Inc/US@GGMI,James Grant/General Growth Mgmt Inc/US@GGM1 Subject: Duckland vs Evergreen Walk NO MORE MISTER NICE GUY!! The meeting next Wednesday is primarily to review the approvals Evergreen has and list the approvals that the project require received s in the near of any future.We should think re avenue that we can travel to find ways of McreasIng the viability of the Buckland Hills project? What meetings are upcoming for Evergreeen on local or state level for plan review, Permits. variances etc..... Has a site plan been submitted to the town for filing? Is there a local attorney that Buckland uses that is familiar with the approval process for Evergreen and the permits that they do not have yet? Need to core up with of tenants that Mike and his team wig attack.to keep or have them negotiate with SMITH for lower rents and more TA at the Evergreeen project and use up their capital_ y is there is a strict water/sewer application required for town approval?Some New England towns have banks that are available and a project has to meet many requirements to receive the water/sewer permits over other area projects_?We should find out what other projects are applying for approvals? Has Evergreen applied for tax breaks? Have curb cut permits been granted by the state?1 assume they front on a state road. Ito consideration during.the approval process to see�e big picture Impact on other to�npts htdt�dir�:M � . Have there ever been sighting of eagles;nesting birds.venial pools,wild lif�.................on this large parcel? Just thoughts to get the bail roiling,please forward any other ideas that we can use to to accomplish our goal. THANKS 1 r ! Nancy Murray 97/18/2002 08.37 AM To. John WGou►ty/General Growth Mgmt-1nOUS cc: Subject Re:Suckiand vs Evergreen Walk From:John McGourty on 07/1 812002 1 0:08 AM EDT From: John McGourty on 07/18/200210.08 AM EDT To: Nancy Murray/General Growth Mgmt 1rWVVS@GGMt cc: Steve Yenser/General Growth Mgmt inclUS@GGMt,David C Nelson/General Growth Mgmt►nc/US@GGMI,.Scon Miller/General Growth Mgmt InWVS@GGMI,Joan Maffie/General Growth Mgmt Inc/USQGGMI,Michael McNaughtoNGeneral Growth Mgmt Inc1US@GGMI,James Grant/General Growth MgrM Inc1US@GGMI Subject: Suck/and vs Evergreen Walk NO MORE MISTER NICE GUY!! The meeting next Wednesday is primarily to review the approvals Evergreen has r and the approvals that the project requires in the near future_We should think of any eceived ►f avenue that we can travel to find ways of increasing the viability of the Buckland Hills project? 'fiat meetings are upcoming for Evergreeen on local or state level for plan review, 71*2 snits,variances etc...._ At the Town level, there will be review and public hearings when they submitt their Site Flan Application_ At the State level, the only approvals that I am aware of are from the State TrafficCommission and the State granted approval in Feb. of this year_ Has a site plan been submitted to the town for fling? Yes_ The"t3ener P an was su ► e , armgs e ZUMhear t. The"Final"plan has lobe submitted,hearings held again and approvals ►". :At4bb time,no date t►trs been set. is there a local attorney that Buckland uses that Is familiar with the approval p►orcess for Evergreen and the permits that they do not have yet? Scott met with Carol Williams and Ron Gem and they are looking for a local attorney. The Hartford firm of Updike& Kelly has done work for us in the past. We are getting copies of everything approved by the Town and forwarding it to Carol for review. Need to come up with of tenants that Mike and his team will attack to keep or have them negotiate with SMITH for lower rents and more TA at the Evergreeen project and use up their capital. We are brainstorming here! A3 J Is there is a strict water/sewer application required for town approval.?Some New England towns have banks that are available and a project has to meet many requirements to receive the water/sewer permits over other area projects.?We should find out what other projects are applying for approvals? In this area, the water/sewer issue is dealt with through the Town. With the general plan, Evergreen Walk had an engineering firm present their study on stormwater,water,sewer, Utilities,etc. and there were no red flags raised_ Has Evergreen applied for tax breaks? No. - HaYe curb cut permits been granted by the state?1 assume they front on a state road. Their curb cuts are on Town roads. What other developments are planned or proposed for the local area,were they taken Into consideration during the approval process to see the big picture impact on other. towns including Manchester? When Evergreen Walk submitted their"general"plan.they submitted a traffic study and also presented it at the hearing_ it supported their traffic point of view for the"Buckland area". This study was the basis for their State application. Recently,South Windsor approved the addition of a Stop&Shop in an existing strip enter in the"Town Center"which is approximately 112 to 1 mile from Evergreen Walk_ Other pending/proposed development is in other sections of South Windsor and is not reta�_ �- ester has looked at the total"Buckland area"that crosses town lines,but they are Inc from a weak position due to their approvals in the past for everything in Manchester and now are raising the"traffic card"_ Have there ever been sighting of eagles,nesting birds,vernal pools,wild life_________________on this large parcel? We are trying to find the dinasaur bone that was found when the malt was built and sharing it. .1lfistt is 40-Vt-the:: 4"ft Piease-f~rd.brty o rift"fiat We gars�fse to to n sfi off 00M. A4 From: TO: John McGou rfy on 07126/2002 08:57 AM EDT Steve Yenser/General GrowUi Mgmt inc/U Scott A,01)Mgmt IncMUS@GGMI,David Cnelson/General "aughto��I, rowth Mg/Genera►Growth Mgmf IncC Growth Mgmt IncA(1S@GGMI,Jaynes GranUlnC/US@GGMI,Nancy Mums /Gen 1,Michael Maffie/Genera►Growth AtnIt in rant'G GGM/Growth AMgmt Mc/U8@GGM JoanGrowth CC. Subject- Buckland Hills vs Evergreen Walk Nancy and t met on Wednesday to review the delay or Impede the Evergreen Walk project toPoe ere avenues n 8 s to explore in order to �- S-Windsor PlanningNM. of devel and Zoning Commission issued oP►nent for Evergreen Walk with severs► approval of the Package to Carol WN►iams for legal review to determinems'Nas original plan . $ twss�►e yeas Of Vulnerability. . d this 2. Plans should be reviewed for weta►nds compliance. k is withh�the minimum set back of appears thcompe ed a of �.Windsor law far the Dermitted disturbance Wes g pavement development within the Welland buffer..Nonce of set back and an should research�n and pavement it win reduce the The further back we can u restrictions for Parking fields and or building sizes_ Push the edge of 4 3- Nan . that the r c}+has heard project needs to be 60S corn fwa►►c►n9 will be issued.The fetter from leasing tecons►deration to join Buckland mitted before construction could dela to the selected retailers for Y this /o being met by EGW. deck wobsite of S_ ng public hearings s_ Wdsoy for any fling by EGW to {t- fP...moms g She will also obtain the boards fiftiate Planning and ITheSg meeting should and meeting schedulesfor the nextwill be attended by some of our team members_5. GP legal or local counsel should Commissions that elf research the past decisions of the p&, 7 ected the Stop&Shop sued Me city for denial and won the project near the EGW site_Ste to halt this developmentaPpeat. What were the concerns of the Shop which�much smaller in sc %Wston$Storrs has represented St oPe and fin commission for the development of n op Shop in Mass and won appeals leaf EGW? ew sites.I will aals sk Bob Davis at G&S if his firm als on ci represented gt � 1.d verify if tf�e�,� . flop l Iw uw�f-- -rftdbrfll*.T with ff,e ne vi ONG SHOT SPEC►At_,------- Find a group of dinosaur lavers s on the site_Request that the excavation be ca W)Y findings- Land should systematically x worked that feel there are bones refully monitored to preserve group-Delay,sss . sifted by machines and reviewed by gii� ill obtain the names of board Members least one of them tot °1 Uie P&2 Commusion. There is a7.1 embers is not in total favor of the r Patated from the other members. ciect or rwMed be raised from the floor. Try to encourage through someone that the issues of °permits but could add some addiwants to ti nal condbiti°ns cosrs vote ting of prevent the approve►of Nancy to have further conversations with Mr Pefiigrini of Ma me and$$$ "OPment for his continued assistance. Man, Economic A5 i believe Nancy has a good handle on the localcess ra 'the EGW to prepare for the public hearings.She has contacted on actedand ►the Chamber steps monitor the len who g Pass on anything they hear and local otticials in Manchester win also keep her recommend Nancy and other staff members continue to be active within the community 1 and visible at functions and remind everyone Buckland Hills is and has been supportive member of the region. Additional Buckland updates; ctor is in the loop.Jose has met with the contractors for the rest-rooms on the LL and the local Buildin Inspe g There are fireproofing issues within the back corridors bed inspector.He may have different interpretation than the pro inspector.by Building A6 V 2 v � Buckland Hills—Conference Call 10-30-02 Debbie Hutton Courtney Chris Healy Conn Autobond Society,Fish&Game, Angler Clubs in the area. Coalition that protects the river. Alert them up and down the line. Go out to the neighbors and alert them to the two hearings at hand. Impact on traffic Property values Environment safety ]Bigger goal to get crowd of substance Parallel Step: chat with local political leaders and legislators and see if we can get somewhere_ Get better read_ Environmental Safety Sprawl Issue Everyone.has to live by the same rules_ Piece meal-Not good planning Quality of life issue. The area is already congested_ We're already established and have room to take on Doesn't it make more sense? Does this really fit into an overall plan that's good for South Windsor and the area_ It will hurt businesses, add traffic,add costs._-if we overbuild,create more traffic and noose wants to go through the hassle._.everyone suffers.- Weive'suet the t€st with ourciltti ...we're a.g..oa airr at�d wet ta.kc . that. But to add more space, all the businesses could suffer, We have nothing against another neighbor if they build a quality project. When Buckland was being developed and many other centers, they all have to go through the paces because we had to as well. We are a neighbor and have a vested interest in what happens here_ What is the unemployment rate in the community? 4-5% Growth will happen—but at our mall instead of another development. DEPOSITION EXHIBIT ,j�•.2�, a GGPJJ 0001 A7 Budget deficits Taxes?? .Buckland's history? We make no apologies for being successful and expanding our projects at BuckIand. We are doing it NOW. You're counting on a developer to We reserve the right to point out information that is helpful to the community_ If anyone understands that,we do because this is our business. Building successful, managing have choice in their purchase_ we have a vested legitimate right because We've been here a number ofyears(credibility) It is good for South Windsor,neighborhoods....we don't think there are enough questions answered at this time. One million sq. ft. is a huge footprint! it's a lot of space. A8 GGPJJ 0002 Why are you opposing TI US project? . Our concerns relate to process at this time_ It is important, as a neighbor and Member of this community, to look at the project closely and make sure it is the best development Possible. The current project that is being proposed has a piece-meal approach that is historically ineffective, and not the best approach to the approval process. For example, Evergreen plans to only construct minor traffic improvements for this application and not the reconstruction ofBuckland Road and other traffic improvements mandated by the State Traffic Commission and endorsed by the Towns of South Windsor and Manchester. We are very concerned with the potential traffic and other environmental problems. The area is already congested_ Buckland Hills Mall is already established and is the right project done in the right way in the right location. It doesn't nuke sense to increase the traffic congestion and spread the problem further.along Buckland Road_ What are the environmental issues? iAmong the more significant environmental issues are those arising out of the developer's proposed piece-meal approach to the project_ Under this approach the town will lose its ability to consider conservation easements or to engage in comprehensive environmental Planning to mitigate or avoid short and long-term environmental impacts that will result from a mullion square foot development project_ For example, to fully evaluate the Potential wetlands impacts,the town should consider the construction,drainage and stormwater nut-Off associated with the full one million square feet project not just the 90,250 square foot Expo footprint_ In addition, there are other numerous traffic, air quality,wetlands, drainage,water diversion and contaminated soil issues that need to be evaluated in the context of the entire development project. This development will create new jobs for the area and bring SS via taxes to the region. Growth in employment opportunities and tax dollars will happen regardless. It's just a matter of where the community feels it makes the most sense, and what quality of development it will be. '04 tre eestitig t ►�t�eis a skibsta�utiai`timoudt.of lit fity lit-1 e opposing this project. We have a common interest with the neighbors in the community and feel we have a right to know ALL the information before decisions are made_ There are many questions that still have to be answered. Does this really fit into the overall plan that's good for the community? It will hurt businesses, add traffic, add costs, etc_ If we overbuild, create more traffic and then no one wants to go through the hassle__.everyone eventually suffers. We've met the test with the mall...we've been good neighbors and want to continue to be. A9 GGPJJ 0006 r } j 1 Is it fair to throw, up unnecessary roadblocks? We have nothing against another neighbor if they want to build a quality project. When Buckland Hills was being developed, we had to go through this.process and answer all the questions. These developers should have to as well. We are a neighbor and substantial property owner,and have a vested interest in what happens here. Where are many unanswered questions at this time. The important thing to remember is that one million sq. ft. is a huge footprint! It's a lot of concrete and asphalt. Therefore, there should be a lot of questions about how that space is being used. How much are you prepared to.spend to stop this development? The important thing is that we.get all the questions answered. And clearly, whatever money spent to analyze it would be less risky than what taxpayers may be stuck with down the road if these questions go unanswered. What is.your motivation? Aren't you just trying to keep competition out of the market? Keep all the money to yourselves? Competition ratchets up the quality of retailers and services that each business provides and we are pleased that Buckland Hills has been so successful'over the years...in fact we are expanding our interests here and redeveloping Buckland Hills Mall-to make it even better_ We've been here over a decade and love being a part of this community . h' Pointing out information about this development and it's potential impact on the neighborhood is beneficial to the community. If anyone understands that, we do, because this is our business. We've developed, managed and leased successful properties throughout the country for almost 50 years and as experienced developers and neighbors we know it's important to ask some questions. Is this good for the community and neighborhoods? We don't think there are eno ugh questions answered at this time_ One million sq. ft. is a lot of space and needs to be Competition is 4 good thing, but the piece meal approach is ineffective for a complex process like this. In our expert opinion, a master planned development and comprehensive approval process-is necessary. Doesn't expanding Buckland Hills Mall bring up all the same issues? As an experienced developer, we are able to foresee changes like these and plan to accommodate them. When Buckland Hills was developed over a decade ago, we planned for future expansion. This is an established center and we already have room to include additional retailers the community wants. i A10 GGPJJ 000s y F Why are you funding an opposition group? We have common interests with neighbors in the community and it is pexfecdy natural for us to share information with,and assist them in, our common inter casts. But the important thing to remember is that they are an ind that unded makes it's own decisions_ We are merely shatinginformation t and self because we hazation common interest and we are all in this together. All GGPJJ 0004 t� I General Response: We were held to certain standard when we originally built the ma and all we're asking is that this project be held to the same standard. It's our responsibility to look out for the best interest of our retaailer....to make and keep t1 ie mall shopable- The area is already congested and we have to look outfor the longterm viability of the area Competition is a good thing,but the piece meal approach is ineffective for a complex process like this. In our expert opinion, a master planned development and comprehensive approval process is necessary in order to get the quality development the community needs. We live in this community and we are concerned about today and tomorrow. THE REAL ISSUE IS THIS PIECE MEAL APPROACH! We've only gotten partial responses on our freedom of information request. We've requested information relating to the development...but the Town of south Windsor has not responded as they are supposed to do. Why are you opposing THIS project? Our concerns relate to process at this time. It is important, as a neighbor and member of this community,to look at the project closely and make sure it is-the best development. possible. The current project that is being proposed has a piece-meal approach that is historically ineffective, and not the best approach to the approval process_ For example, Evergreen plans to only constrict minor traffic improvements for this application and not the reconstruction of Buckland Road and other traffic improvements mandated by the State Traffic Commission and endorsed by the Towns of South Windsor and Manchester_ We are very concerned with the potential traffic and other environmental problems. The -area.is a1z eddy congested. Buckland Hills Mali is already established and is-the right P1 =:hr tt. gr.�iti fit:wit-lira: ,t_4 ... r_ etii d tle=pr�hlei ,lamer g1ta _. What are the environmental issues? Among the more significant environmental issues are those arising out of the developer's Proposed piece-meal approach to the project. Under this approach the town will lose its ability to consider conservation easements or to engage in comprehensive environmental planning to mitigate or avoid short and long-term environmental impacts that will result from a million square foot development project_ For example, to fully evaluate the potential wetlands impacts, the town should consider the construction, drainage and stormwater run-off associated with the full one million square feet project, not just the 90,250 square foot Expo footprint_ In addition, there are other numerous traffic, air Al2 GGPJJ 0010 I 4 quality,wetlands,drainage,water diversion and contaminated soil issues that need to be evaluated in the context of the entire development project_ This development will create new jobs for the area and bring$$via taxes to the region. Growth in employment opportunities and tax dollars will happen regardless. It's just a matter of where the community feels it makes the most sense, and what quality of development it will be. You are costing taxpayers a substantial amount of money in lawyer's fees by opposing this project. We have a common interest with the neighbors in the community and feel we have a right to know ALL the information before decisions are made. There are many questions that still have to be answered. Does this really fit into the overall plan that's good-for the community? It will hurt businesses, add traffic, add costs, etc_ If we overbuild,create more traffic and then no one wants to go through the hassle_..everyone eventually suffers. We've met the test with.the mall-_.we've been good neighbors and want to continue to be.- Ls it fair to throw up unnecessary roadblocks? We have nothing against another-neighbor if they want to build a quality Buckland Hills was being developed, we had to go through this proces and answer roject ll n the questions_ These developers should have to as well. We are a neighbor and substantial property owner,and have a vested interest in what happens here. There are many unanswered questions at this time. The important thing to remember is that one mullion sq.ft.is a huge footprint! It's a lot of concrete and asphalt- Therefore, there should be a lot of questions about how that space is being used. now much are you prepared to spend to stop this development? The important thing is that we get all the questions answered. And clearly, whatever money spent to analyze it would be less risky than what taxpayers may be stuck with down the road if these questions go unanswered. What is your motivation? Aren't you just trying to keep competition out of the market? Deep all the money to yourselves? Competition ratchets up the quality of retailers and services that each business provides and we are pleased that Buckland Hills has been so successful over the years...in fact we A13 GGPJJ 0009 a i are expanding our interests here and redeveloping Buddand 1-11s Mall to make it even better. We've been here over a decade and love being a part of this community. Pointing out information about this development and its potential impact'on the neighborhood is beneficial to the community_ impact' understands that; we do, because this is our business_ We've developed, managed and leased successful properties. throughout the country for almost SO years and as experienced developers and neighbors we know it's important to ask some questions_ Is this good for the community and neighborhoods? We don't think there are enough questions answered at this time. One million sq_ ft. is a lot of space and needs to be considered with due seriousness_ Competition is a good thing, but the piece process like this- Inmeal approach is ineffective for a complex our expert opinion, a master planned development and comprehensive approval process is necessary. Doesn't expanding Bucldand Hills Mail bring up all the same issues? As an experienced developer,we are able to foresee changes like these and plan to accommodate theniL When Buckland Hills was developed over a decade ago, we planned for future expansion. This is an established center and we already have additional retailers the community wants_ room to include Why are you funding an opposition group? We have common interests with neighbors in the for us to share community and it is perfectly natural information with, and assist them in, our common interests_ But the important thing to remember is that they are an independent and self-funded organization that makes it's own decisions. We are merely sharing information because we have a common interest and we are all in this together. ` anr.� e Air 'mac a-g�ti �sl�-� appiyov�d farr lr.'. - : .' ago,..where was General Growth at that time? This is the first General Growth has ever opposed a development. (Being a developer ourselves, we are pro smart- development/growth). We heard about the project and our concerns did not fully develop until we began witnessing the process for approval that was taking place. Obviously a decision like this is not made without a LOT of thought and research_ We took the decision very seriously and decided we could not sit by and watch while major errors were being made. We decided that we will get involved in projects that aren't the right development and aren't being done in the right way. We won't oppose a development just to oppose it...but instead will oppose those developments that are being handled wrong and will ultimately have a negative effect on the surrounding community. A14 GGPJJ 0008 t Y The redevelopment of Buckland Hills will primarily focus on adding family focused amenities to the property_ These amenities, such as a carousel,play area, soft seating and aesthetic elements will provide a more comfortable enVironment for shoppers. We don't anticipate much of a traffic increases but instead anticipate that it will make customers feel comfortable in the center for a longer period of time. Redevelopment is a normal course of business...they are taking a piecemeal roval approach We built the property in a way that would allow for minor expansion of the Property if demand rose and expansion was appropriate. But we did not PLAN to expand_ Evergreen PLANS to expand their reach beyond the No particular point and no Particular way. Why are you appealing? We've taken this action,we're not happy about it but it's necessary the town in not allowing for a fair hearing of the facts...whether this million dollar n footprint ofsteel is the best thing fdr the area at this time- Points to a pattern of incompetence_ A pattern of trying to rush this project through._-and that's not good for anyone...the neighbors, the city, the area businesses i A15 GGPJJ 0007 D@cember 5, 2002 evergreen W41k Speaking points We 4kYbe asked atverMe COMng months -medla regarding Eve about articles that a rg'nee7 Walk_ Here are some resp.oases to oaf end Oar in he local 9ucltland Hills Mall Management and G for the best interest of our retailers. enera(Growth Properties are(coking out -the Buckland Hills Mall and its owners have been heJ and safety standards when the mall was built and current d to certain environmental p�Opedh'- Questions need to be asked address: ental Walk project to be held to the same standards that y as we redevelop the ed- We expect the Evergreen 6uck(and Hills Mall has been- As always, the only official spokespeople for Bu Murray and Tara Torino_ Nancyckland Hills and Tara should answer Mall are Nancy if tetailers have further questions, please �roc� all media inquiries. them to the Malt Management 1 DEPOSITION A16 Notice : All Neighbors of Evergreen rg Walk You Can 6e Heard at Nov, 20�' Hearin g The Town of South Windsor's Inland-Wetlands Commission will hold a public hearing on Wednesday,.November 20 at 7:00 p:m. in the Town Hall to hear testimony from the public on the 235-acre commercial development. • This 1.3 million--square—foot development will affect your Property values, the scenic beauty of the area, traffic, commerce and your way of life. The developers have not explained in full the true nature of this development, how and when it will be constructed and benefits to the community. The project will cover precious natural resources, including the Podunk Watershed area, the Plum Gulley Creek and the Podurik and Connecticu t Rivers: More importantly, this project is being proposed in stages without a timetable or method to evaluate its.impact on your neighborhood. • Make your voice-heard! Stay involve d,an .tend th .Inland Wetlands Comn ission Meeting; Wednesday, Novernber 2e at 7:00 p.m. at the Town Hall, 1540 Sullivan Avenue, South Windsor. For information and directions.or go to southwindsor.org A17 GGPJJ 0014 a Some Questions to. Consider On the Evergreen Walk Project How much additional traffic is this new development going to cause along Buckland Road? What is the environmental impact on the area? • How much new storm'water will. be drained into the watershed and rivers? • How does this project conflict with the conservation plan? • What type of wildlife and plant-life exist on this site? • Why is the site being developed in pieces, and not as a whole? • What assurances do the neighbors have that this project won't adversely affect their property values? • What is the basis for creating so much office space when there is an abundance of office space throughout the area? • Have etiough parking spaces been identified for the additional traffic? • How tall are these large "box" commercial buildings and-how will they hurt the scenic views of the neighborhood? • Shouldn't the public record be left open so critical information can be submitted? This notice provided by General Growth Properties, Inc. A18 GGPJJ 0013 Corporate Communications Update 1-15-03 1. JCTC Strategic Planning--have called Penny twice. 2_ JCTC Website Creation—left message for Jason. 3_ JCTC Releases—Century Theaters&Restaurant. 4_ Third Party Strategic Planning—first meeting on'January 21d w/Tim Haislet&Julie Richey. 5_ Retailer Productivity Strategic Planning—left message for Julie Cameron. 6. Emergency Crisis Manual—playing phone tag with David Levenberg. 7. Fallen Timbers--working on a couple letters to the community. 8. Spring PR Guide—scheduled to go out March 34 9_ Proactive PR—wilt be meeting with PR firms February 5-7'in Chicago. 10.Revamped Gmail—should start biweekly distribution first week of February. 11.ICSC Convention—1Nichelle has not transferred info. Would like to wait to see if she and Mark can handle. 12_Fact Sheets—David is working on these. 13.Media Training—Oklahoma two days of training_ Only have 5 more to do this year.14_ Community Relations—would like to work with Michelle/ to develop a strategic -community relations plan that better addresses the mall's needs_ 15.Circle T&Lent Ranch—have asked for information so we can get involved in these projects but have not received any yet_ --� 16_Buckland IJills—Trying to get Army Corp of Engineers involved_ We have a redevelopment scheduled to begin in March and complete in August_ We now live in a much Partially glass house=could face some opposition of our own But it should not delay us IT Glendale Galleria—agreed to work with Mike Chimitris as the opposing well. Wiweeks.ply here as Will begin drafting speaking points over the next couple of weeks. 18. Maternity Leave—planning ahead a. Third Party—David b. Investor Relations—Nicole c. Retailer Productivity—Nicole =ct B .�ssl©Pent—livid j £ IN ckland—"Wally(if time permits) g. Glendale—Wally(if time permits) h_ JCTC—Nicole i. Fallen Timbers—David j. PR Manuals—Nicole k. Proactive PR on hold 1. Crisis Training—on hold in, Industry media—Nicole n. National media& Crises—David o. Gmail—Sam p. 50a'Anniversary—David/Nicole A19 GGPJJ 0016 • s Joel's intention is to talk with Paul Ferguera about potential joint ventures(Evergreen Walk). We are at very beginning of project: We've had quite a bit of success so far. They should have had approvals in November...and it's already January_ They are very worried. They withdrew P&Z medical center. We have refiled the intervening papers. Status of intervention will be discussed at next meeting—whether to grantor deny_ Ultimately they will grant it and we have a number of objections we'd like to make. Wetlands we have intervened and it was a hostile environment. We objected on piece meal approach. Our expert Dennis Lawry gave his presentation and wetlands commission liked him. It's.helped smooth the way. He's very professional but down to earth. Waterpolution control authority has approved the sewer line and the city is acting like the applicant on behalf ofEvergreen Walk and just today we heard back from state archeologist and he is certainly calling the Corp_of Engineers to get a review done and find out what's going on State traffic commission—our objections to them were late_ But we are coming back to them to discuss Buckland Road_ Town owns some land for the Evergreen Walk project and we are now trying to find out what's going on there. They are stimying us.._we will appeal that_ Our easement is an issue_ We have declined to give it to them_ Leasing is moving forward_ Renovation plans—kick off construction in mail early march...completion august. We now live in a partially glass horse. A20 GGPJJ 0017 •. 4 1 ia•va ucvet�_ tx[UW n rrcex to aCio Me 1 1 � ( D 1 Wv. to Qa�e: ?J13F1p03 YO� U*.V Lassiter.Darryl Borg Emrn; Michael H.Mchlaughton . RE: euckiand HIIIS L S Several rm)'ft 490. 1 brought up the prospect of a'last ditch"effort to swa th *Om Eve Wee"Walk, y e natal away A$springpm approaches and Evergreen wnWx"s to delay. I think we may have opportunity to revisit the retailers and hit them in their waWL Y e an i. 1 am of the opinion that knowing that Evergreen is-at best -ZQ months from can deliver by 4#1 quarter. delivery;we 2• Rumor has it,several retailers have a t_OIwith a 3I31/03 date that the mus Qo-tn , Y t deliver the 17,10 is a dangerous,ands n9- w but at e WO. iCs over(unless our other activity with Bob works), there is only Upside. Let's discuss, A21 Libby t-asaiter �� : anyt_6ortner@"erafgiowlh. 43/OA/2003 06.30 PM To d Gmwth MVM Inc/t) 00 McNa oN ai . tncAJSQGGMi,Jenny ForsvBob 83011 Get tt MU" James Grant/General Growth Growth GGM IncJ(.►�GGMf, Miller/General Growth MgmtGMf,Scott Vrolet.bllman(�,r?genero cc_ Karen Spencer. McGatyCanhy/�Generai Sub ect: wth YanosrcWGene"Growth Mgmt Mc/tjS@GGMt I�S@GGMI, j uckland Hilts We have been making some s' �f pretty rgn roant 140al headway in dela (� ,, Yrnt7 the Ey Pr'oiect As prepared for Mondays meeting with t 1C(�a�'.�'�� ��Walk - to try and convince them to bag EW wants °be really come with . He would 1"Ice a brief memo fromyou O - rmt). In addition,for 6ucldand he rea "on all the deals we can do with them some of ffie things we have been nY wants a figure savvy'package along Ute lines f erch a very yho - awwhg deparlment stores lately. renovation renderings and budgeE t don't think we need ma et information want to be there• We can also provide some of the mall as they know the market and Can we Pull this all together by end of day Ifida Bob's help- y_ 17l probably have Sharon or Rob present for us with Ong the fines of Michael's Memo of 2/13/03 from EW.8ob wants us to take this show he r his proposed"fast ditch"effot to sway retailers away with very tough economics. Who on the road now and make some key deals even if we have to can we land now with aggressive eCorromics? Let's start our Pic-Tel tomorrow wish this discussion_ Michael should probab! minutes 11.30 AM east coast. Valet,hell need a number for the con ferenceyp ��or the first few St=otf/Jim.could we get Bruce as ' our room- Is so good at this v srgned to help v with this fast minute effort? Weave onl E41M T �fjow'thing_ 1f Yes.could you have him join us at 10.30 Y got 3 days. He on 4th - cer►trai as well for pic Tel with re<�sim.I hove a rvaA aUa46tW- Our! -1 team Partnering good a hn'Y abut this and think our y have A n9 Scott has done an outstandi�ma ged it DIY- Let's go for it, rr9 job- Now we ve got to ad LftY Lassiter GOn"Growth Properties Ile N-Wacker pr",Maddrop.2-26 Chicago, IL 60606 TetePhone:312.96o.5053,Fax-312-960-5466 A22 t ) 1 Michaet McNaughton To: Libby Lassiter/General Growth thgm,Ir�GUS 0 GGMI 07/21J20(j3 p4:38 PM cc: Berme Freibaurn/Genefai Growth <<` MiChaGISAGeneral Growth Mgrnl kicllMg'nl IOGGMI,Sri an Bob McCarthYA eWWMl Growth Mgmt kv/US@GGM;.Jean l G"0 �"*404 Cohn er�il - Growth MO ChimNW-AGer 1 Growtht t "GoW.Mltt mm; Growth Mgmt kIOVS®GGM Mt �SIOGGMI,Hors GWWGeneral lr�S0GGMI •'SC*"Mir/General Growth Mgmt hanks Libby. Subject_ Re:Buckland Hills/Privileged and COnWntialm 'V approach here has been to IOCU8 on 3 key retailers I cEwan or who are willing to jump ship. Who either have not signed leases with Poag� A23 r e a lb 90 with us Over EW. Once again,)think this has t""to Pta� Ot . � ► merchant and BOb. most direct - �con. sation witho�the d ac W Not much re-visit our Project has occurred here since our meeting in San Francisco. P ject at the end of the summer N the Cal at the end of the month. They have agreed to Evergreen project gets delayed. I will (L c A24 Michael AfcNaughton To. 11/03/21003 01.16 PM Libby Lassiter/General Growth Mgm{ .ay► s,rf �= �GGMt Subject. Re:Buckland LAY. On a Personal note, I have come away firoln this with one If YOU had been witti this r certainty, would have wont region and been involved with the fi Thank ght we've been in for the past three years,W. 'You for your passion and determination. _ - Wel ggt-em next tune_ It MCNaughton.CCIM Be9"W Vice President(Northeast - (508)64 7-407 7/fart 647 Lib109t3 by Lassiter Libby Lassiter _ 1110212003 04:3s PM Tv_ Bernie FretbaunyGeneral Growtft + Bob M" e1s)General Growth M9mt Inc/US@GGMI lernmerlGenera/Growth M9mt I t VS@GGMt,Jean BlbamGeneral Gro Mgmt IncIUS@GGMI,John SubJeCL RW ea ral Growth O'"tt In��OGGM/(bcc.Michael Ike o ode D 1 would welcome the oPPonunity for us to get regards to the Da"Bonner and Michael McNaughlon when We do as a grflup and discuss this_ Id sf {prior to?year ago)than!do and t think the do so as they have far You want me to move forward and 171 set it up_ yd feet more context in good about the Gosure_ Let ase Y Lassiter General Growth Properties 110 N_Wacker Drive,Maildrop.2 26 Zelepiwrs elep IL 60606 e:312.960_W53,Fax-312-960-5466 Berme Freibaum +iS a i`s-Y• �� GGA4i.Jean A��:� ib. =M�int����I����lf+il • h _ fike to Suti�- �Buddand tvkJspt +2GGMII dale Bank You and your team for your det ucldand should still do p ermined efforts.Even though Plan A does not VPened here as a am 'le business when you execute Plan B_ "Mr cir group so that we are prepared to utilize a different strategy appear to be c�msWW'es again.in Let's discuss what e. sped to how 9 case there are any lessons to be teamed or we deaf e9Y if es 0 bePresentedfdewith with sby Lassiter with certain retailers_ changes to be made with Libby Lassiter To: John Bucksbaurn/General Grow Michaels/General Gr thowth Grow gml!�Mgmt IncAJS@GGMi,Bob 1S@GGMI,Jean - A25 10/31/2M 04:51 PM Sd or~General Growth cc_ Frerbaum/Ge�Growth ern mts�2GGMl,Bemfe Gery General Gmwth plymrnG�J Gtowth MAmt l non Growth/S M8nd lncAJS@GGMt,Sc�Mt er/Genera! S Michael"aughton//Generall Growth r 06GMlh.c,m, uWect: Bucidand Mg r►dUS�(,GMt .John, I am responding fo your email addres leasing to the key prospects i�;not sed to Michael requesting an update_ good and 1 thought it best that l respond forthe learn_news regarding I At this time, Evergreen a!k has notified key tenants that the requirements been met_ q ements of each i ndividual lease have ne We believe it is appropriate to Getat Growth Properties Wacker Onve Maildrop:2 26 Oh�. IL ti0t306 rekp6or e:312-960.5053,Fair.312.960.W6 A26 � 1 � Scott Miller To: Michael McNaughtoMGeneral Growth Mgmt tncRJ 0112112p0410:5$AM ccc --•- Subject: Re:6udcland Ok There have been some interesting deveiopments at Superior:Court- i smell fear. r-� A27 HRP a4avcnea��t W N ENVIRONMENTAL/CIVIL ENGINEERING & HYDROGEOLOGY July 22, 2003 FM Mr. John King Updike,.Kelly & Spellacy, P.C. CONNECTICUT One State Street 167 New Britain Avenue P.O. Box 231277 Plainville,CT 06062 Hartford, CT 06123-1277 800-246-9021 860-793-6899 FAX 860.793-6871 RE: PESTICIDE AND HERBICIDE ISSUES AT THE L.A. FITNESS CEN- TER AT EVERGREEN WALK PROJECT IN SOUTH WINDSOR, MASSACHUSETTS 220 Forbes Road CONNECTICUT (HRP #UPDO007.HG) Suite404 Braintree,MA 02184 800-351-5590 Dear Mr. King: 781-356-2944 FAX 781-356-2409 Pursuant to your request, HRP Associates Inc. (HRP) has conducted a review of design plans and available environmental data sources with re- NEW YORK 100 Saratoga Village Blvd. spect to the proposed project referenced above. As with the rest of the Sulte27 Evergreen Walk project, the proposed L.A. Fitness Center lies directly in Malta,NY 12020 the east central portion of an area designated as South Windsor Area 2 888-823-6427 on the 1985 CT DPH Mapped Monitoring Locations For EDB and Vorlex 518-899-3011 base figure. In addition, a report entitled Phase /, //, and ll/ Environ- FAX 518-899-8129 mental Site Assessment prepared by Fuss & O'Neil Inc. (F&O) and sub- mitted to CT DEP on October.16, 2002 for the Terry Office Park at 465- PENNSYLVANIA 481 Buckland Road indicates that pesticides are known to exist on prop- 4807 Jonestown Road Suite 246 erty adjacent to the north of the proposed construction. Lastly, during Harrisburg,PA 17109 testimony before the South Windsor Wetlands Commission and the 866-232-9824 Planning and Zoning Commision regarding Evergreen Walk, F&O indi- 717-920-1350 sated that due diligence testing had revealed the presence of pesticides FAX717-920-1353 on the subject site. To my knowledge the F&O report detailing the results of the testing performed has never been made available for public review. SOUTH CAROLINA As such, our review is limited to our perceived notions of the what the 7001 Pelham Road Suite J projects entails with respect to the pesticides that are known to exist, but Greenville,SC 29615 absent any pesticide sample location, concentration, nature or extent in- 800-752-3922 formation. 864-289-0311 FAX864-281-9846 It appears that the proposed L.A. Fitness Center project will not create conditions that dramatically diverge from the joint CT DEP & DPH Gen- eral Guidance On Development of Former Agricultural Properties memo, which was issued in 1999. The guidance suggests that the CT DEP www.hrpassociates.com Remediation Standard Regulation (RSR) be consulted with respect to appropriate measures for protecting human health and the environment J:\U\UPDIK-UPDIKE,KELLY&SPELLACY\ONE STATE STREET,HARTFORD, CT\UPD0007HG\WP\L.A.Fitness.doc Creoting the Right Solutions Together t Mr. John King Page 2 July 22, 2003 when developing former agricultural sites. The proposed construction will provide opportu- nities to isolate and/or mitigate any potential exposures thorough installation of parking lots and the building, the sum total of which covers virtually the entire development site. .Notwithstanding theses observations, material management of potentially impacted soils at the property still deserves an appropriate measure of care. Consider that typical construc- tion practice is to strip site topsoil and subsequently sell the material. The topsoil is un- doubtedly the most contaminated material since that is where the pesticides would have been applied. As such, resale of that material for placement about the community in yards, gardens and landscaped areas would be ill advised, as it may constitute an unacceptable health risk. We have no information that suggests material management on this project will be any different. To this end it seems that best professional practice would compel the ap- plicant to share with the public the results of it's due diligence testing. We. herefore rec- ommend that the commission request that the applicant disclose the findings of their pesti- cide-testing program. . Please do not hesitate to call us at (860) 793-6899 with and question or concerns. Thank you for the opportunity to be of continued service. Sincerely, HRR AS CIATES N D s Project n er J:\U\UPDIK-UPDIKE,KELLY&SPELLACY\ONE STATE STREET,HARTFORD,CT\UPD0007HG\WP\L.A.Fitness.doc limp 167 New Britain Avenue• Plainville, CT 06062 • (800)246-9021 -(860)793-6899 • FAX (860)793-6871 000 FUSS&O'Neill Inc. Consulting Engineers 146 Hartford Road,Manchester,CT 06040-5992 TEL 66o 646-2469 FAX 86o 533-5143 INTERNET:www.fussandoneill.com Other Offices: West Springfield,Massachusetts Trumbull,Connecticut Providence,Rhode Island Columbia,South Carolina Greenville,North Carolina August 19, 2004 Ms. Elizabeth A. Warren Chairperson RECEIVED Inland Wetland Agency/Conservation Commission Town of South Windsor AUG 2 0 2004 1540 Sullivan Avenue South Windsor, CT 06074 South Windsor INLAND WETLANDS AGENCY CONSERVATION COMMISSION RE: L.A. Fitness at Evergreen Walk IWCC App# 04-38P Dear Ms. Warren: As requested at the July 23, 2004 TWC.0 meeting, attached are the results and locations of soil samples taken in I.-be Ocinity of the proposed L.A. Fitness at Evergreen Walk project. Please contact me if you have any questions. Sincerely, y-7 Michelle M. Carlson,P.E. Associate Attachments: Soil Sample Location Map Table of Results c: Alan Lamson, FLB GAP2000\48l\L10\Soi1 Sampling Letter MMC 8-19-04.doc Corres.(HQ) MEMORANDUM To: South Windsor Inland Wetland/Conservation Commission. From: Jeffrey H. Folger— Environmental Planner/Conservation Officer Date: August 26, 2004 Re: Appl. #04-38P Review of the proposed LA Fitness Sit Plan. Revised Plans dated 08/18/04. This is a review of the site plan to date and proposed changes in the configuration of the stormwater system. In August the applicant and I met with representatives from DEP on the feasibility of including the stabilization of the existing watercourse as a part of the LA Fitness site plan. The DEP sees the value of stabilizing the watercourse to reduce the sediment load to the wetland system to the west. They said that they would be willing to consider stabilizing the watercourse a separate activity, thereby reducing the regulatory burden from the applicant. With this in mind, it makes sense to reconsider the configuration of the proposed stormwater system for the LA Fitness application. The applicant is willing to stabilize the length of the watercourse as a part of this permit application. There will be additional wetland disturbance quantified for the repair activities. The alternative proposal is to treat the stormwater with a structural BMP, a VortecnicsTM gross particle separator and a 200 foot grass swale as a secondary treatment measure. This swale would be constructed within the existing Ag field so no clearing of forest vegetation would be required. This proposal will result in a reduction of vegetative clearing by eliminating the long swale, a reduction of sediment load to the existing, high functioning wetland to the west, and adequate treatment of expected pollutants from the LA Fitness site. Since a separate plan to stabilize the watercourse is needed, a condition of approval could be placed that requires a separate plan be submitted to the Commission, or to staff for review an approval. I would recommend that any approval condition of this sort include the provision that no Certificate of Occupancy be granted until the watercourse is stabilized to the satisfaction of Town Staff. Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B.Hankins 1 SUPERIOR COURT Page 1 COMPLEX LITIGATION 2 AT NEW BRITAIN 3 4 --- ---------------------------) 5 PAVILIONS at BUCKLAND HILLS, ) LLC ) 6 Plaintiff (s) , ) VS ) Civil Action No. 7 ) X03-CV-04-0527493S EVERGREEN WALK,LLC, ET AL. ) 8 Defendant (s) . ) ------------------------------) 9 10 11 12 DEPOSITION Of: JOHN B. HANKINS 13 . DATE: August 26, 2004 HELD AT: Updike, Kelly & Spellacy 14 24th Floor One State Street 15 Hartford, Connecticut 16 17 18 19 20 21 22 Reporter: . p er: . JENNY C. EBNER, RPR, LSR 00030 . BRANDON SMITH REPORTING SERVICES, LLC 23 44 Capitol Avenue Hartford, CT. 06106 24 (860) 549-1850 25 Brandon Smith Reporting 6587679e-1331-482-b923-doda70f1 ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 2 1 APPEARANCES : 2 REPRESENTING THE PLAINTIFF: 3 UPDIKE, KELLY & SPELLACY One State Street 4 Hartford, CT 06213 By: JOHN C. _ KING, ESQ. 5 6 REPRESENTING THE DEFENDANT: 7 MCCARTER & ENGLISH,LLP 185 Asylum Street 8 36th Floor Hartford, CT 06213 9 By: CHARLES RAY, ESQ. 10 ALSO IN ATTENDANCE: 11 DANIEL D. TITUS, P.G. , HRP Associates 12 t 13 14 15 16 17 18 19 20 21 22 23 24 25 Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda70f1 ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 3 INDEX EXAMINATION Witness Name Page JOHN B. HANKINS Direct By Mr. King . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 EXHIBITS Exhibit Page Hankins No. 1 Marked for Identification 12 Hankins No. 2 Marked for Identification 12 Hankins No. 3 Marked for Identification 44 Hankins No. 4 Marked for Identification 47 Hankins No. 5 Marked for Identification 54 Hankins No. 6 Marked for Identification 57 Hankins No. 7 Marked for Identification 62 Brandon Smith Reporting Services Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda7Of1ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins _ Page 4 1 S T I P U L A T I O N S 2 It is stipulated by counsel for the 3 parties that all objections are reserved until the 4 time of trial, except those objections as are 5 directed to the form of the question. 6 7 It is stipulated and agreed between 8 counsel for the parties that the proof of the 9 authority of the Commissioner before whom this 10 deposition is taken is waived. 11 12 It is further stipulated agreed that any 13 defects in the Notice are waived. 14 15 It is further stipulated that the reading 16 and signing of the deposition transcript by the 17 witness may be signed before any Notary Public. 18 19 20 21 22 23 24 25 Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda70f1ffaa ' Pavillions at Buckland Hills vs Evergreen • I 8/26/2004 John B. Hankins 1 (Deposition commenced at 10 : 00 a.m. ) Page 5 2 3 JOHN B. HANKINS, 4 called as a witness, having been duly 5 sworn, by Jenny C. Ebner, R.P.R. , L.S .R. , 6 a Notary Public in and for the State of 7 Connecticut, testified - S follows : 8 9 DIRECT EXAMINATION BY MR. KING 10 11 Q Mr. Hankins, my name is John King, and I 12 am representing Pavilions at Buckland hills . And as 13 you know, you are under oath, and I will be asking 14 you a number of questions, and you have to respond 15 orally so that the response is transcribed. 16 If you don' t understand any question that 17 I might ask, just ask me to rephrase it or say you 18 don't understand it so that on the record whatever 19 your responses were it 's clear that you did 20 understand the question that was being asked. 21 A Okay. 22 Q Where do you live, Mr. Hankins? 23 A 129 Puddin Lane, P-u-d-d-i-n, in Mansfield 24 Center. 25 Q How long have you lived there? Brandon Smith Reporting 6587679e-1331-4f82-b923-deda7Of1ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 6 1 A Ten years . 2 Q Okay. Where are you employed? 3 A Fuss & O'Neill, Incorporated in 4 Manchester. 5 Q What is your position? 6 A Vice president and Director of Site 7 Assessment Services . 8 Q How long have you had that position? 9 A That ' s specific position? 10 Q Yes. 11 A On the order of five or six years . 12 Q Did you have any position -- what was your 13 position at Fuss & O'Neill prior to -- 14 A I was an associate for several years 15 before that, and senior hydrogeologist prior to that 16 time. 17 Q Prior to that did you have any other 18 title? 19 A At Fuss O'Neill, no. 20 Q Prior to your employment there, where were 21 you employed? 22 A TRC Environmental Consultants, then in 23 East Hartford. 24 Q How long were you there? 25 A Six years . Brandon Smith Reporting 65876799-1331-4f82-b923-dcda7Of1 ffaa 8/26/2004 Pavillions at Buckland Hills vs Evergreen John B. Hankins 1 Q What did you do there? What was your Page 7 2 position there? 3 A My position varied, but I started as an 4 entry level hydrogeologist and moved up into the 5 position of senior hydrogeologist by the time I 6 left . 7 Q Prior to your employment at TRC where were 8 you employed? 9 A I had a brief stint at the U.S. Geological 10 Survey here in Hartford, on the order of six months. 11 Q What did you do there? 12 A I assisted -- I was a technician assisting i 13 with a geophysical survey. 14 Q Okay. Prior to that employment? 15 A As far as professional employment, that ' s 16 my full record. 17 Q Okay. How about your educational 18 background? 19 A I have a Master' s .in Science from the 20 University of Connecticut, 1985, and a Bachelor's of 21 Arts from Carlton College, Northfield, Minnesota in 22 1981. 23 Q Moving forward to Fuss & O'Neill, your 24 current title you testified was what again? 25 A I am a Vice President and Director of Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda70f1 ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 8 1 Environmental Assessment Services . 2 Q What are the duties and responsibilities 3 of a vice president and director of environmental 4 assessment services? 5 A I am responsible for directing a large 6 proportion of the due diligence environmental 7 assessment work, preacquisition, for instance, that 8 is conducted by the company. 9 Q What do you mean by "preacquisition"? 10 A Frequently when a party is considering 11 buying or selling a property,- there -is a 12 preacquisition environmental assessment that is 13 conducted to determine the condition of the site. 14 Q Why is that required? 15 A Many lenders, many buyers and some sellers 16 feel it ' s important to understand the environmental 17 condition of the site and the environmental 18 liabilities before a site is transferred. 19 Q Does it also have to do with compliance 20 with the Transfer Act? 21 A It may at times. That ' s a subset of the 22 sites that I do. 23 Q So that the preacquisition assessment may 24 have to do with the lenders or the purchasers, and 25 it may, but not necessarily shall, in each instance Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda7Of1ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins 1 affect the Transfer Act? Page 9 2 A Correct . 3 Q Okay. Do you have -- besides the degrees 4 that you have listed, any particular professional 5 licenses or other professional criteria? 6 A Yes . I am a licensed environmental 7 professional in the state of Connecticut. That ' s a 8 program through the Department of Environmental 9 Protection. 10 Q Okay. 11 A I am a. -- if you want me, I can -- 12 Q Go ahead. 13 A I am a Certified Professional Geologist 1.4 through the American Institute of Professional 15 Geology. 16 Q Okay. Any others? 17 A I have been, in the past, a registered 18 professional geologist in the state of Pennsylvania 19 and in the state of Arkansas. 20 Q Okay. Any other in Connecticut at the 21 moment? 22 A No. 23 Q Going back to a -- LEP is what again? 24 A Licensed Environmental Professional. 25 Q What does that license entitle you to do? Brandon Smith Reporting 6587679e-1331-4f82-b923-deda7Of1 ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 10 1 A Specifically under some of the states 2 regulatory programs, most notably the Property 3 Transfer Act, it allows you to verify that a site is 4 in compliance with the Remediation Standard 5 Regulations . 6 Q with the remediation standards? 7 A Yes . 8 Q Any other particular attributes that go 9 with being a LEP? 10 MR. RAY: Object to the form of the 11 question. I am not sure to the extent he 12 knows what you mean by the word 13 "attributes. " 14 MR. KING: I will try to clarify. 15 BY MR. KING: 16 Q Any other -- you mentioned specifically 17 the ability to verify a site under the Transfer Act 18 because you are a LEP. Is that -- 19 A Yes. 20 Q Are there any other -- I can't think of a 21 better word than "attributes" -- but any other 22 abilities or things that you can do because you are 23 a LEP that you couldn't do if you were not a LEP? 24 A Yes. There are certain voluntary . 25 processes that take place in the state, whereby an Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda7Oflffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 11 1 owner can enter a site into a voluntary cleanup 2 program and at the end of the process have a 3 licensed environmental professional verify that 4 their site complies with the Remediation Standard 5 Regulations . 6 Those are sites not specifically in the 7 Property Transfer Act . 8 Q Under certain circumstances you can verify 9 sites outside the end of the Transfer Act? 10 A Correct . 11 Q Any other abilities, if you will, or other 12 attributes of the license beyond the Transfer Act 13 verification, and in certain instances the voluntary 14 - process, where there can also be a licensed 15 verification? 16 A Those are the only two that occur to me. 17 Q Okay. How about Certified Professional 18 Geologist, what abilities, if you will, are given to 19 you by virtue of you having become a Certified 20 Professional Geologist? 21 A I would say there aren't any specific -- 22 it ' s not a state program, not really a federal 23 program. It is a private agency that issues 24 certifications . It ' s really simply a credentials. 25 Q Okay. Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda70f1 ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B.Hankins Page 12 1 MR. KING: I am going to mark for 2 identification a copy of the notice of 3 deposition, if I may. 4 5 (Hankins Exhibit 1 : 6 Marked for identification. ) 7 8 BY MR. KING: 9 Q Mr. Hankins, I am going to show you -- 10 this would be Plaintiff' s Exhibit 1 for ID, and ask 11 if you have seen that Notice of Deposition before, 12 with the attachment? f t 13 A Yes, I have. 14 Q Okay. 15 MR. KING: And I am going to mark for 16 identification the subpoena duces tecum, 17 please. 18 19 (Hankins Exhibit 2: 20 Marked for identification. ) 21 22 BY MR. KING: 23 Q Have you seen this subpoena duces tecum? 24 A Yes. 25 Q Plaintiffs Exhibit 2, was that subpoena Brandon South Reporting 6587679e-1331-4f82-b923-deda7Of1 ffaa ` Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 13 1 served upon you by a marshal, if you know? 2 A Yes, it was . 3 Q You are here today pursuant to that 4 subpoena? - 5 A Correct . 6 Q Okay. I would ask you to turn to page 3 7 of Plaintiff ' s Exhibit 2 for identification, and I 8 note that there is an attachment .. I believe it' s 9 page 3 . 10 MR. RAY: I think you are on the 11- notice, John. 12 MR. KING: Okay. Thank you. 13 THE WITNESS: I. think you meant, 14 probably, Exhibit 1 . 15 BY MR. KING: 16 Q Going to Plaintiff ' s Exhibit 2, the 17 subpoena duces tecum, there were a number of 18 documents which you were requested to be brought by 19 you under subpoena. Did you bring any documents 20 with you today? 21 A No. 22 Q And why didn' t you bring any documents 23 with you? 24 A Attorney Ray instructed me that I did not 25 need to bring documents because of something that Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda7ofl ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 14 1 had been worked out. 2 Q Is Attorney Ray representing Fuss & 3 O'Neill? 4 A No. 5 Q Okay. Okay. At Fuss & O'Neill are there 6 documents that are maintained involving the 7 Evergreen Walk project? 8 A Yes . 9 Q How are these documents maintained? Are 10 they individual files? Are they in file cabinets or 11 do individuals have different files, if you know? 12 A I am only specifically familiar with my 13 maintenance of documents under this project. 14 Q Right. 15 A And I maintain documents with respect to 16 environmental work that has been done under my 17 direction. 18 There is also a correspondence file 19 that -- to which we send many of these documents 20 that is maintained internally. 21 Q These are your documents you are referring 22 to? 23 A Documents that have been generated under 24 my direction. 25 Q Okay. So the only file you are aware of, Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda70f1 ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 15 1 that you have any contact with at Fuss & O 'Neill, 2 would be documents generated by you and 3 correspondence related thereto? 4 A That is correct . 5 Q Do you have any idea how the other 6 documents are maintained, other documents that not 7 documents generated by you or correspondence in 8 relation thereto, how those documents are maintained 9 at Fuss & O'Neill? 10 A Not specifically. 1.11. Q Okay. 12 A I could only speak to the way that 13 Fuss & O'Neill maintains documents in general . 14 Q Okay. How are the documents maintained in 15 general at Fuss &O'Neill? 16 A They are generally maintained in a central 17 correspondence file by project number. 18 Q While it ' s called a central correspondence 19 file, does that include, if you know, applications 20 and plans, land maps and things like that? 21 A Maps, in some cases, may be in a 22 correspondence file or may be included in a separate 23 map file system that we call the Vault. 24 Q Besides maps, are other documents 25 maintained in the Vault, if you know? Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda7Oflffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 16 1 A The documents that are maintained in the 2 Vault are generally large format, 24 by 36, some 11 3 by 17 and larger Mylar plans and maps . 4 Q Okay. 5 A Anything that appears in a large format 6 would be stored, whether that was a map or whether 7 it was an engineering specification, et cetera. 8 Q Okay. Could you generally categorize -- 9 we don' t have them here today -- if "categorize" is 10 not clear enough, I will try to be more specific -- 11 but generally, in connection with the Evergreen Walk 12 project, what sort of the documents have been 13 generated by you? 14 A Prior to the site acquisition in, 15 approximately in the year 2000, while it was still 16 known as the Catholic Cemeteries property, before it 17 was purchased, we conducted a phase one 18 environmental site assessment. 19 Q Uh-huh. 20 A On behalf of Evergreen Walk. 21 Q Was it Evergreen Walk that retained Fuss & 22 O'Neill? 23 A That' s my recollection, but I am not 24 certain on that, what the entity would have been. 25 Q Okay.. Brandon Smith Reporting 6587679e-1331-4f82-b923-doda7Oflftaa Pavillions at Buckland Hills vs Evergreen - 8/26/2004 John B. Hankins 1 A We also, at that time, conducted, shortly Page 17 2 thereafter, a limited number of -- a limited soil 3 sampling effort . 4 Q Okay. 5 A I believe our client on that was Attorney 6 Lawrence Rubinow, R-u-b-i-n-o-w. 7 Q So in the year 2000, amongst documents 8 generated by you were the phase one site assessment 9 for Evergreen Walk and some soil sampling effort on 10 behalf of Attorney Rubinow? 11 A Correct . 12 Q That was about 2000? 4 13 A Correct . 14. Q Do you know when -Fuss & O'Neill was 15 retained by Evergreen Walk? 16 A No. 17 Q But your work began in about 2000? 18 A 1999, 2000, that time frame. 19 Q What other documents have been generated 20 by you in connection with Evergreen Walk? 21 MR. RAY: Let me object to the form of 22 the question. So I understand, "you" 23 meaning him specifically as opposed to 24 Fuss & O'Neill? 25 MR. KING: That is correct. I am Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda70flffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 18 1 focusing on going back to his testimony 2 about his file documents generated by 3 Mr. Hankins . 4 MR. RAY: Thank you. 5 THE WITNESS: Ask the question again. 6 BY MR. KING: 7 Q Beyond the phase one site assessment in 8 2000 and soil sampling effort in 2000, what 9 documents have been generated by you, as you have 10 generically described them, in connection with the 11 Evergreen Walk project, to your recollection? 12 A There are no other reports that we have 13 generated. 14 Q Are there any other reports -- let me go 15 back. You say "no other reports we have generated, " 16 "we" being? 17 A Fuss & O'Neill . "We, " Fuss & O'Neill, 18 with respect to environmental conditions. 19 Q Okay. So the reports that have been 20 generated by Fuss & O'Neill with regard to the 21 environmental conditions at the site were the phase 22 one site assessment in 2000 commissioned by 23 Evergreen Walk and the soil sampling effort 24 commissioned by Attorney Rubinow? 25 A Right. Realizing when I talk about Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda70f1ffaa Pavillions at Buckland Hills vs Evergreen 8%26/2004 John B. Hankins Page 19 1 environmental documents generated by Fuss &_ O'Neill 2 I am only talking about the ones I am aware of . 3 Q That ' s right . 4 A If there are other environmental documents 5 that we generated that I am not aware of, those are 6 beyond the scope of my answer. 7 Q But the ones we have been talking about so 8 far are the ones you are aware of? 9 A Yes. 10 Q Okay. With regard to the phase one site 11- assessment, what did that entail? 12 A In general, when we do a phase one 13 assessment there are certain technical approaches we 1.4 are required to take. We -generally follow something 15 called the ASTM Standard which is a nationwide 16 standard. 17 Q Uh-huh. 18 A As well as the Connecticut DEP Transfer 19 Acquisition Site Assessment Guidance document. 20 Those lay out a process for conducting a phase one, 21 and the key elements of that are a site walkover, 22 interview with an individual or individuals that are 23 familiar with the historic land use of the property, 24 and a review of aerial photography at the Department 25 of Environmental Protection, to develop a little bit Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda70f1 ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 20 1 more about the site history and historical land use, 2 and review of historic maps to the extent we can 3 identify it, interviews with individuals familiar 4 with the property, with the town government . That 5 would be the building department, town clerk, fire 6 marshal would be examples . 7 Q Right. 8 A And a review of the files, regulatory 9 files at the Department of Environmental Protection. 10 Q Uh-huh. 11 A As well as a database, electronic database 12 search through an independent service that is able 13 to provide us with electronic records that- tap into 14 the DEP and EPA databases . 15 Q Uh-huh. Did the phase one site assessment 16 involve testing for pesticides? 17 A No. 18 Q Okay. So, is it fair to say that the 19 phase one site assessment had nothing to do with 20 pesticides? 21 A The pesticides may have been identified in 22 the phase one, and I have not reviewed that document 23 -- 24 Q Okay. 25 A -- in several years. But it may have Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda70f1 ffaa ' . Payillions at Buckland Hills vs Evergreen - 8/26/2004 John B. Hankins Page 21 1 identified pesticides as a potential issue in this 2 part of South Windsor. 3 Q If -- so your recollection is that the 4 phase one site assessment may have identified 5 pesticides -- may have identified pesticides .as a 6 potential issue in this part of South Windsor; is 7 that a fair characterization? 8 A I think that is what I said, yes . 9 Q So, assuming pesticides were so 10 identified, what, if anything, was done as a 11..... followup to that identification? 12 A The followup was the second report that I 13 referenced to Attorney Rubinow, which was after the 14 sampling program, soil sampling program of the 15 surficial soils in the area that we were 16 investigating, which was identified as the Catholic 17 Cemeteries property -- 18 Q Going back, before we get there, to the 19 phase one site assessment, was that document 20 transmitted to any third parties? 21 A The only parties I recall submitting that 22 to was our client themselves . 23 I have no recollection ultimately whether 24 or not we distributed that document elsewhere. 25 Q Okay. So, in terms of any of the agencies Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda70f1ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B, Hankins Page 22 1 in South Windsor or the DEP or any other 2 governmental agencies, you have no knowledge one way 3 or the other whether that was distributed, other 4 than Fuss & O'Neill haven given it to the client? 5 A Correct. 6 Q Okay. Getting to the second study, the 7 sampling with regard to the surficial soils that was 8 what was then the Catholic Cemeteries, would you 9 describe that process, please? 10 A We took a number of surficial soil 11 samples, and if memory serves, it was on the order 12 of 15 to 20, from the shallow soil to essentially i 13 determine whether tobacco-related pesticides were 14 present in the soil and at what concentrations . 15 Q Okay. And who physically did this work? 16 A It would have been someone operating under 17 my direction, but the specific individual that 18 checked the samples I don' t recall. 19 Q Someone under your direction? 20 A Yes . 21 Q At Fuss & O'Neill? 22 A Yes. 23 Q What was the result of -- going back -- 24 withdraw that question. 25 So, it was 15 or 20 shallow -- ,I am Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda7Of1 ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 23 1 sorry -- samples that were taken by someone under 2 your direction? 3 A That is correct. 4 Q Over how long a period of time, if you 5 know? 6 A I would assume it would be one day. 7 Q Okay. What was the result of this soil 8 sampling effort? 9 A We did detect relatively low levels of 10 pesticides in a number of the samples. II Q What sort of pesticides, if you recall? 12 A This is off the top of my head. 13 Q Okay. 14 A I know Dieldrin, D-i-e-l-d-r-i-n, was one 15 of them. We detected -- I believe we detected DDT 16 and some related compounds . 17 Q Uh-huh. 18 A We did detect Arsenic at some 19 concentration, and there may have been -- it was 20 like there were one or two other pesticides that 21 were detected as well in one or more of the samples . 22 - Q Okay. When you say you detected low 23 levels of pesticides, what do you mean by "low 24 levels"? 25 A I typically compare concentrations to the Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda7Oflffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 24 1 residential direct exposure criteria that are 2 applied -- that are included in the Remediation 3 Standard Regulations . 4 Q Uh-huh. 5 A Typically the numbers we were detecting 6 were below those criteria. 7 Q Below which criteria? 8 A The residential direct exposure criteria. 9 Q Okay. Is that part of the RSRs? 10 A It is. 11 Q So that while the RSRs -- are the RSRs 12 legally applicable to this site, if you know? E J 13 A It ' s my understanding they are not 14 applicable to this site. 15 Q So you were looking at the RSRs in terms 16 of a guideline? 17 A That is correct. 18 Q In terms of a guideline what you detected 19 was -- utilizing the residential direct exposure 20 criteria, what you detected was below the criteria 21 set forth in the RSRs; is that a fair statement? 22 A Make the statement again. 23 Q Utilizing the residential direct exposure 24 criteria, the pesticides that you detected were 25 below RSR criteria? Brandon Smith Reporting 6587679e-1331-4f82-b923-doda7Of1ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins . Page 25 1 MR. RAY: I object to the form of the 2 question. I believe the testimony was 3 they were typically below the standard. 4 MR. KING: I will adopt Attorney Ray' s 5 statement . 6 BY MR. KING: 7 Q Were these criteria typically below the 8 standards set in the RSR criteria? 9 A Yes . 10 MR. RAY: Can we put on the record 11. what "RSR" is? 12 BY Mk. KING: 13 Q What is that? 14. A Remediation .Standard Regulations . 15 MR. RAY: Thank you. 16 BY MR. KING: 17 Q As a result of your determination that the 18 pesticides detected were typically below the 19 standard, utilizing the residential direct exposure 20 criteria, what, if anything, was done with this 21 sampling study? 22 A Can you give me a time frame? 23 Q In or about 2000. When you received the 24 results, you received the results, you came to this 25 conclusion. What then happened with the study? Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda70f1ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 26 1 A We provided the results to Attorney 2 Rubinow. 3 Q Were these -- are the results of the study 4 distributed to any third party beyond Attorney 5 Rubinow, to your knowledge? 6 A Not to my knowledge. 7 Q Do you know why that ' s the case? 8 A No. 9 Q _ The foundation question is, really, do you 10 have an opinion as to why they may not have been 11 further distributed? 12 MR. RAY: I object to the form of the 13 question. I think it calls for 14 speculation. 15 THE WITNESS: Where would that leave 16 me. 17 MR. KING: You can answer. 18 MR. RAY: Sorry. Go ahead. Yes, you 19 can. 20 MR. KING: Here you can. 21 THE WITNESS: Again speculating, I 22 think he asked us to determine whether the 23 soils met the residential direct. exposure 24 criteria, and we gave him an answer to 25 that question, and he considered it asked Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda7Of1ffaa Pavillions at Buckland Hills_ vs Evergreen 8/26/2004 John B. Hankins F1 and answered and had no need to follow up. Page 27 2 BY MR. KING: 3 Q Okay. Are there other RSR criteria 4 besides the residential direct exposure criteria? 5 A There is a whole variety of criteria that 6 apply to different contaminants and different media. 7 Q Are there other RSR criteria that might 8 apply to pesticides, in your opinion? 9 A RSR criteria don't apply on this site. 10 Q But. let ' s assume this was a site where RSR 11. criteria did apply. Are there other RSR criteria 12 that apply to pesticides? 13 A With the assumption that the RSR criteria 14 did apply to the site? 15 Q Right. 16 A Which I don' t believe they do? 17 Q Okay. 18 A You would look at total concentrations of 19 total pesticides and compare those to the direct 20 exposure criteria, which is what we did, and you 21 would look at concentrations of leachable pesticides 22 and compare those to the pollutant mobility 23 criteria. 24 Q Okay. Was that done at this site, if you 25 know? Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda7Of1 ifaa Pav llions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 28 1 A As part of the -- as part of the activity 2 in 2000, no, it was not . 3 Q Was it ever done at this site? 4 A Recently, 2004, we have conducted some 5 sampling of soil piles that they have got at the 6 site, and analyzed those soil piles for both total 7 and leachable pesticides. 8 Q Who did this work? 9 A That was done under my direction. 10 Q Okay. What soil piles are you referring 11 to? 12 A As I understand it, they have generated a 13 large stockpile of what they consider to be 14 subsoil -- that is soil below the top few inches -- 15 just as excess material -- 16 Q Uh-huh. 17 A -- that they need to manage in some way. 18 That 's the material they asked us to sample. 19 Q They were sampled utilizing which criteria 20 again? 21 A We analyze for total pesticides to compare 22 to the direct exposure criteria; we analyzed for 23 leachable pesticides to compare to the pollutant 24 mobility criteria. 25 Q And what were the results of those Brandon Smith Reporting 6587679e-1331-4f82-b923-doda70flffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 29 1 analyses utilizing both criteria? 2 A Off the top of my head? 3 Q Yep. 4 A My recollection, the total concentrations 5 were consistent with what we found in the previous 6 sample. We meet the residential direct exposure 7 criteria. 8 The leachability tests that we ran, we 9 found that the soils did not meet what is called a 10 ground water protection criteria, which is what you 11 compare leaching results to. 12 Q What does that mean in a practical sense, 13 that these soils do not meet the ground water 14 protection criteria? 15 A Means if you -- if you conduct this 16 leaching test, which is essentially equivalent to 17 running acid rain through the soil, and you analyze 18 the water that comes out the bottom .end, then you 19 compare those to the ground water protection 20 criteria which are essentially the same as drinking 21 water standards, and the concentrations of 22 pesticides in that leachee, if you will, are above 23 the ground water protection criteria. 24 Q Which soil are we talking about? You 25 mentioned the stockpile of subsoil. Brandon Smith Reporting 8587879e-1331-4f82-b923-dcda70f1 ffaa I Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B.Hankins Page 30 1 A Yes . 2 Q And how does this soil relate to the soil 3 that was analyzed in 2000? 4 A This is likely soil that was somewhat 5 deeper. It was described to me as subsoil. 6 Q And when did you receive these results? 7 A These leaching results? 8 Q Yes. 9 A Within the last two days . 10 Q Okay. And to whom have these results it been -- to whom have these results been given? 12 A Shared verbally with Paog & McEwen. 13 MR. RAY: P-o-a-g. 14 BY MR. KING: 15 Q What next step does Fuss & O'Neill intend 16 to take, if any, having reached the conclusion that 17 the leachability, if you will, did not meet the 18 ground water protection criteria? 19 You shared them with Paog & McEwen. What 20 happens from here, in your opinion, to your 21 knowledge? 22 A We weren't asked to take the next step. 23 We were asked to provide them with the data which we 24 did. 25 Q Okay. So, as you are testifying here, you Brandon Smith Reporting 6587679e-1331.4f82-b92,"cda7of1ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins 1 don't know whether these results will be reported to Page 31 2 a third party, either some agency of the town of 3 South Windsor or any other governmental agency or 4 any other third party? 5 A That is correct . 6 Q So you provided them, if you will, to the 7 client, and then the client presumably will make 8 whatever determination the client makes as to 9 dissemination? 10 A Verbally. I provide them to the client 11 verbally. 12 Q Okay. Having made the conclusion within 1' F 13 the last two days that you have made in terms of the 14 noncompliance with the ground water protection 15 criteria, what does that mean in terms of this 16 stockpiled soil, if anything? 17 MR. RAY: I object to the form of the 18 question. Only as to the use of the word 19 "noncompliance. " 20 MR. KING: Okay. 21 THE WITNESS: Can you rephrase? 22 BY MR. KING: 23 Q Sure. Having made the decision that . -- I 24 think I am using your words -- they were not 25 noncompliance, that the soil did not meet the ground Brandon Smith Reporting 6587679e-13314f82-b923-dcda70f1ffas Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins r Page 32 1 water protection criteria, what does that mean in 2 terms of the subsoil or the soil that was tested? 3 A It -- the advice I have provided is that 4 the soil would best be managed on site, if possible. 5 That ' s something consistent with what I said 6 previously. 7 Q What do you mean by "best be managed on 8 site"? 9 A Because the soil has material in it that 10 could potentially leach to ground water, as does 11 virtually all the soil in this section of South 12 Windsor, as far as we can tell. It makes sense to 13 manager that soil in the immediate proximity -- 14 Q Okay. 15 A -- rather than bringing it somewhere else. 16 Q Okay. When you say "manage it, " what do 17 you mean by manage the soil? 18 A I mean simply don't transport it elsewhere 19 into an area that has not been impacted by 20 pesticides. 21 Q What, then, is likely, in your opinion, if 22 you have an opinion, to happen to that soil on site? 23 A I am not familiar with the grading plan. 24 Q Okay. But what you are saying -- if I am 25 wrong, correct me -- to the extent that soil is Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda7Oflffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins 1 going to be in some way incorporated into the Page 33 2 project, it should be done at this site and not be 3 incorporated into any project off site? 4 A Can you define what "site" means? 5 Q Actually, I was going to ask you that 6 question. What do you mean by "site" when you say 7 "at this site"? 8 A I am considering the entire Catholic 9 Cemeteries project site that we originally assessed. 10 Q So, therefore, what your recommendation 11;: . would be -- again, I don't mean to put words in your 12 mouth; I am trying to understand myself. What your 13 recommendation would be, whatever utilization was 14 made of that soil it should be maintained at the 15 Catholic Cemeteries site; is that a fair statement? 16 A In general, yes. It might be appropriate 17 to use the soil on another, similar, agricultural 18 property in the area. 19 Q Where there had been similar -- and I use 20 the word "contamination" in a'very general sense, 21 not with a legal meaning -- where there had been 22 similar, if you will, contamination -at another 23 property? 24 A Yes. 25 Q Do you know -- withdraw that. Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda70flfFaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins L S Page 34 1 Who requested that this soil sampling be 2 taken in 2004? 3 A Poag & McEwen. 4 Q Was that a request made specifically to 5 you or to Fuss & O'Neill and then communicated to 6 you? 7 A Specifically to me. 8 Q Okay. Who made that request, if you 9 recall? 10 A You know, I don't recall the names . 11 Q Okay. Did the person who made the request 12 indicate why their request was being made? 13 A Yes. They have got a stockpile of soil 14 they need to manage in some way, and they are 15 evaluating responsible ways to manage that pile of 16 soil . 17 Q So, that ' s another way of saying Paog & 18 McEwen wanted to know what could be done with the 19 soil? 20 A Yes, that' s accurate. 21 Q Was anything else said to you by Paog & 22 McEwen in connection with making this request, that 23 you might recall? 24 A No, nothing of note that I can remember. 25 Q Have you reviewed any reports prepared by Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda7Of1 ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 35 1 other consultants concerning contamination at the 2 site or pesticides at the site? Defining the site 3 for purposes of going forward as the Catholic 4 Cemeteries site . 5 A Reports by other consultants regarding the 6 Catholic Cemeteries? 7 Q Site? 8 A You know, possibly, yes . There may have 9 been an HRP report as part of the -- I believe there 10 have been reports by other consultants that have 1.1 considered this issue. 12 Q Okay. But you don' t have any specific i 13 recollection? You may have -- do you have any 14 specific recollection? 15 A I have read something by HRP. That ' s the 16 only one I can remember offhand. 17 Q Do you know when that reports might have 18 been prepared? 19 A No. 20 Q So, is it fair to say at this site that, 21 as we are here today, there were really three 22 studies performed? One was the site assessment in 23 2000; the second was the soil sampling in 2000; and 24 the third was the 2004 soil sampling that you just 25 described? �. Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda70f1ffaa Bucklan Hills vs Evergreen Pavilhons at d gr 8/26/2004 John B. Hankins Page 36 1 A That is correct. 2 Q Going back to 2000, is there any reason 3 that in 2000, while you looked at the residential 4 direct exposure criteria, that an analysis was not 5 made in 2000 concerning the leachability under the 6 pollutant mobility criteria? 7 A Yes . There was a very specific reason. 8 We didn' t look at that . We were evaluating 9 potential impacts to human health related to this 10 site. In our evaluation, direct exposure to the 11 soils was something worthwhile to evaluate. 12 Leaching, potential leaching of the contaminants to } 13 ground water was not a public health issue, as the 14 entire area is served by public water. 15 Q So, the 2000 soil sampling study was taken 16 with the notion of exposure to human health but was 17 not taken with the concern involving exposure to the 18 environment; is that a fair statement? 19 A No, I would say not. . 20 Q Okay. 21 A What is your definition of "environment"? 22 Q I guess ground water issues, issues 23 concerning wildlife, potentially, and protecting of 24 ground water resources, environmental sensitive 25 areas. Brandon Smith Reporting 6587679e-1331-482-023-dcdaMl ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 37 1 A Our focus was on human health. 2 Q Okay. 3 Q Going back to the 2000 study, you 4 mentioned 15 to 20 shallow soil samples . How is 5 he -- how is that study performed? What is done in 6 that study? 7 A Very simple . 8 Q Okay. 9 A As I recall, we strive to take random 10 samples, and if I recall correctly, we did some kind 11_ of a grid and generated random numbers to try to 12 distribute these samples across the site in a more v 13 or less random manner. 14.. Once we picked those locations, we simply 15 went to each of those locations, scooped up a small 16 amount of soil, say eight ounces, on that order, put 17 it in a jar, top, I believe it was somewhere between 18 three and -- top 3 to .6 inches, put that in the jar 19 and brought it to Phoenix Environmental Laboratories 20 in Manchester, and they provided the results within 21 a week or two of that. 22 Q On the 2004 sampling, how was that 23 undertaken? 24 A This was different in that there was a 25 soil pile to be sampled, not a site. Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda70f1ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 38 1 Q Right . 2 A This was done in two stages . The first 3 stage, which was probably on the order of two months 4 ago, something like that, we took samples manually 5 around the outside of the pile and across the top of 6 the pile, and I believe it was 20 to 25 locations. 7 More recently, in the month of August, we 8 went -- the pile had since been moved, but it was 9 the same pile of soil -- to get an even more 10 representative sample. 11 We actually had them dig in the pile 12 somewhat with a backhoe, several feet, collected, 13 again, 25 samples around the perimeter, enough 14 samples so we would have a representative set. 15 Q Right . Then what happened with those 16 samples? 17 A In each case those samples were brought to 18 Phoenix Environmental Laboratory; they analyzed them 19 and provided us with analytical reports. 20 Q You indicated there were samples taken in 21 August and also a prior period? 22 A We collected 20 to 25 samples each time. 23 The first round was done for total pesticides, and 24 the second round was done for leachable pesticides. 25 Q Okay. So the first round was where the Brandon Smith Reporting- 6587679e-1331-482-023-dcda70f1 ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B.Hankins Page 39. 1 results were -- correct me if I am wrong -- 2 consistent with the 2000 results, and the second 3 round, looking at another criteria, resulted in the 4 determination that you have mentioned? 5 A Correct . 6 Q Okay. With regard to all of these -- 7 going back -- I assume these various reports and 8 materials related to these reports are in your 9 files? 10 A Yes . 11 Q Okay. Other than the first two reports 12 having been given to site assessment, to Evergreen ) 13 Walk, the 2000 sampling to Attorney Rubinow, and the 14 _ 4004 (sic) sampling to Poag & McEwen, you are not 15 aware whether or not these reports have been 16 disseminated to any third parties? 17 A No, I am not aware that they have been 18 disseminated. 19 Q Okay. 20 A I should clarify part of your question. 21 To my recollection there' s not been a report 22 generated with respect to the 2004 sampling. 23 Q Verbally. 24 A Particularly not the most recent sampling. 25 Q Okay. What has happened is you have the Brandon Smith Reporting 6587679e-1331-4f82-b923-deda70f1 ffaa Pavillions of Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 40 1 results of the samples, and they have been, as we 2 sit here today, verbally communicated to Poag & 3 McEwen, and that ' s where it sits? 4 A That is correct . 5 Q Okay. 6 A I should clarify, the most recent ones we 7 certainly have not submitted a report. The once 8 that were collected a month or two ago, I can't -- I 9 honestly can't remember whether we sent them a 10 letter report associated with that. I 'd have to 11 check. 12 Q If there was such a letter or report, it 13 would have gone Poag & McEwen? 14 A Yes . 15 Q With regard to the initial site assessment 16 in 2000, do you know who compensated Fuss & O'Neill 17 for that work? 18 A I believe there was an entity called 19 Evergreen Walk at that time, LLC, that was set up 20 that compensated us . 21 Q How about the 2000 soil sampling that was 22 commissioned by Attorney Rubinow? 23 A - I don' t recall who actually paid that 24 bill . I was not the individual responsible for 25 sending out invoices, so I don' t know how the Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda7Of1 ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 41 1 payment on that went. 2 Q Are you responsible for sending out 3 invoices on any of the work that you have described 4 this morning? 5 A No, I am not . 6 Q Okay. Have you had any discussions 7 with -- outside the context of public hearings, with 8 any -- .let me withdraw that question. 9 Outside the context of public hearings and 10 outside of discussions within Fuss & O'Neill, 11 discussions with Evergreen Walk, discussions with 12 Attorney Rubinow or discussions with Poag & McEwen, .13 have you had any discussions with any other third 14 party concerning the results of pesticides sampling 15 as we have discussed this morning? 16 A When you indicate Evergreen Walk, you are 17 including legal counsel for them? 18 Q That is correct. 19 A No, I have not had any discussions outside 20 of that group. 21 Q You have not -- to be more specific -- had 22 any discussions with a governmental body, any 23 persons within South Windsor, for example, 24 concerning the these issues? 25 A None that I recall. Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda70flfhaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 42 1 Q Do you know if anyone within Fuss & 2 O'Neill has? 3 A I don' t know the answer to that . 4 Q Okay. When you have appeared at these 5 public hearings, various public hearings in South 6 Windsor, have there ever been any discussions in 7 connection with these appearances as to whether or 8 not to provide the reports, and we will take out the 9 2004 report at the moment since that is so recent, 10 but certainly to provide the results of either the 11 site assessment or the 2000 soil sample to the 12 various agencies within South Windsor? 13 Has there been any discussions as to 14 whether to provide it or not provide it? 15 A In just a point of clarification, my 16 discussions with attorneys at -- this includes my 17 discussion with attorneys at McCarter & English? 18 I think the answer would be -- I think if 19 I asked for that information I would probably get an 20 objection on the basis of attorney/client privilege. 21 I would say outside of any meetings that would have 22 included counsel from McCarter & English. 23 A I don' t recall any discussions about 24 whether that information should be shared as you 25 asked the question. Brandon Smith Reporting 6587679e-1331-482-b923-dcda70flfaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B.Hankins Page 43 1 Q Right . And whatever may have -- so, 2 outside the in presence of counsel you don' t recall 3 any discussions as to whether or not this 4 information should or should not have been shared? 5 A That is correct . 6 Q If there were such discussions, to put it 7 another way, that would have occurred in the 8 presence of counsel? 9 A Yes. 10 Q Okay. Were. there meetings that occurred 11 outside of the presence of counsel with regard to 12 preparation for public appearances before the 13 various agencies in South Windsor? 14 A None that I attended. 15 Q Okay. So -- okay. I guess the flip side 16 of that coin is any such meetings you attended in 17 terms of preparation for public appearances at South 18 Windsor included the presence of counsel? 19 A That ' s my recollection, yes. 20 Q Okay. 21 Q Were there any discussions with you 22 involving representatives of the applicant, and I 23 would include in this instance Poag & McEwen, 24 Evergreen Walk or Poag & McEwen and Evergreen Walk 25 about discussions with town commissioners or the Brandon Smith Reporting 6587679e-13314f82-b923-dcda7Of1ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 44 1 staff about disclosure of these reports? 2 A All of my discussions have occurred with 3 McCarter & English -- 4 Q Okay. S A -- present. 6 Q Okay. I am going to hand you a document, 7 and if may I ask that be marked for identification, 8 call it the LA Fitness at Evergreen Walk map. 9 (Hankins Exhibit 3 : 10 Marked for identification. ) 11 12 BY MR. KING: 13 Q Looking at Plaintiff' s Exhibit 3, can you 14 identify this document, Mr. Hankins? 15 A I am not sure I have seen this document 16 before, but it is a -- it ' s titled, Catch Basin 17 Drainage Area, a map prepared by Fuss & O'Neill as 18 part of a site design. 19 Q In connection with the LA Fitness 20 application? 21 A Yes, it is . 22 Q Okay. Is this site -- we will call it the 23 LA Fitness site, located within the site as we 24 generally identified as the Catholic Cemeteries 25 site? Brandon Smith Reporting 6587679e-1331-4f82-b923-doda7oflffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B.Hankins Page 45 1 A Yes . 2 Q So that the soil conditions that you have 3 described generally about the site presumably would 4 be applicable to the soil conditions at the LA 5 Fitness Center site? 6 A Yes . 7 Q It ' s my understanding, although I may 8 be -- may or may not be correct in this, but it ' s my 9 understanding that at the last meeting of the Inland 10 Wetland Agency, slash, Conservation Commission a - 11 request was made by that commission with regard to 12 the results of the soil sampling at the site that I 13 believe you have testified about in this and other 14 hearings. Is that an accurate statement, to your 15 recollection? 16 A I was not at that meeting. .17 Q Okay. So, do you know, as we are sitting 18 here now, whether you will be in attendance at the 19 September 1 meeting? 20 A ' I plan on it now, yes . 21 Q Do you know whether or not there' s an 22 intent at that point to disclose the results of any 23 soil sampling? 24 A I am not sure of the answer to that. I 25 think we would be prepared to do that if necessary. Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda70f1 ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 46 1 Q Okay. So, as we sit here today, you are 2 not certain whether copies of reports will or will 3 not be provided to the Inland Wetland Agency 4 Conservation Commission on September 1st? 5 A That is correct . 6 Q Okay. Were you involved with the Army 7 Corps of Engineers ' permit for the -- in connection 8 with the Gateway trunk sewer? 9 A No. 10 Q On July 2 of 2003 there was a hearing 11 involving the ECH and Casle Medical site plan 12 application. Do you recall being at that hearing? 13 A There were several hearings I went to and 14 several I didn't, and they are a blur at this point. 15 I am not sure whether I attended that specific 16 hearing or not. 17 Q I am going to ask that some -- we will 18 call them verbatim minutes of Inland Wetland Agency 19 Conservation Commission of July 2, 2003 be marked 20 for identification, please. 21 MR. RAY: I have no objection to the 22 marking. I have an objection to 23 characterizing them as "verbatim, " but my 24 history is they are often not verbatim. 25 MR. KING: They are at least described Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda70f1 ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B.Hankins Page 47 1 as verbatim. 2 MR. RAY: Okay. Fair enough. 3 4 (Hankins Exhibit 4 : 5 Marked for identification. ) 6 7 BY MR. KING: 8 Q Mr. Hankins, I am directing your attention 9 to Plaintiff ' s Exhibit 4, and on the second page 10 there is some testimony by Michelle Carlson of Fuss 11 & O'Neill . 12 A Yes. 13 Q She states at the bottom part of what is 14 shown as page 15 of Plaintiff ' s Exhibit 4 -- I am 15 going to read that, and can point you to that if 16 needed, but it 's about the tenth or eleventh line 17 from the bottom. 18 "We concur that the proposed mitigation 19 area will create a riparian zone adjacent to the 20 Plum Gulley wetland system, and I would like to add 21 one more thing as far as pesticides and soil 22 management. Screen tests will be conducted for 23 pesticides prior to soil excavation and reuse on the 24 Evergreen Walk property. Soils used in wetlands, 25 mitigation areas will comply with all state and Brandon Smith Reporting 6587679e-1331-4f82-b923-doda7of1 ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B.Hankins Page 48 1 federal requirements and regulations . " 2 If you know, what does Ms . Carlson mean by 3 screen tests? 4 A I am not specifically sure what she was 5 referring to there. 6 Q Okay. Do you know whether or not, with 7 regard to excavated soil involving the riparian zone 8 adjacent to the Plum Gulley wetlands system, that 9 tests for pesticides were conducted prior to soil 10 excavation and reuse on the Evergreen Walk property? 11 A The only pesticide sampling after 12 construction was started that I am aware of is the d 13 testing I already referred to. 14 Q Okay. 15 A If there was additional -- there may have 16 been additional testing that I am not aware of. 17 Q You are not personally aware? 18 A Correct . 19 Q Okay. Turning over to the next page where 20 I believe it is your testimony you did some 21 testimony -- or you actually, I think, were probably 22 responding to HRP testimony, about midway down the 23 page when you are talking about the Terry Terry 24 Office Park; do you see that? 25 A Yes . Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda70f1 ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 49 1 Q You mention, about 15 lines from the 2 bottom, "We did detect some pesticides on that 3 property, but we did find that all of the pesticides 4 concentrations were actually below, in compliance I 5 should say, with the remediation standard 6 regulations criteria that would have applied if 7 those regulations did apply to the site. " 8 That was in connection with the Transfer 9 Act? 10 A Yes. 11 Q I think you testified -- 12 A Yes . 13 Q Do you recall which RSR criteria would 14 apply to that site? 15 MR. RAY: Object to the form. Which 16 site? 17 MR. KING: To the Terry Office Park. 18 MR. RAY: Thank you. 19 THE WITNESS: We would have applied 20 all the criteria that applied. That. would 21 include the direct exposure criteria and 22 pollutant mobility criteria. 23 BY MR. KING: 24 Q You go on to state that with regard to the 25 leachability of pesticides from the soil, our report Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda70f1 ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 50 1 concluded that the soils in that particular site 2 didn' t show any potential to leach to ground water. 3 A That is correct . 4 Q Is that a different conclusion from the 5 most recent conclusion that you have testified to 6 today? That is the August 2004 conclusion with 7 regard to the stockpiled subsoil? 8 A Yes. 9 Q How are the conclusions different? 10 A The stockpile subsoil was determined to 11 have the potential to leach. 12 Q Okay. Going over to page 18, I think the 13 final comment that you made before the comment by 14 Attorney Mallin, M-a-1-1-i-n, your-comment is to 15 bolster something Michelle pointed out a minute ago, 16 soil that is moved around in the ECHN parcel will be 17 managed in a manner consistent with state 18 regulations. And that ' s what I've got. 19 What did you mean by "will be managed in a 20 manner consistent with state regulations"? 21 A Well, there is no -- there is no specific 22 regulation that I am aware of, because the Transfer 23 Act does not -- there is no Transfer Act to file 24 here. Remediation standard regulations don' t apply. 25 So moving that soil outside of the wetland areas on Brandon Smith Reporting 658767ge-1331-4f82-b923-dcda70f1ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B.Hankins 1 the site is consistent with state regulations . Page 51 2 Q So what you mean there is it ' s consistent 3 with state regulations because the RSRs are not 4 applicable? 5 A That ' s true. 6 Q What about using the RSRs as guidelines? 7 A I think that ' s an appropriate thing to do, 8 and that was our approach. 9 Q Going to page 21 there was a dialogue 10 between -- it looks like Commissioner Forzley and 11 Michelle Carlson -- going about a third of the way 12 down the page, Commissioner Forzley states, "Does it 13 say anywhere -- question to the applicant -- 14 "Does it say somewhere that you guys are going to 15 screen soils? Is it written that that ' s going to 16 happen? Is it in a screen for pesticides? It was 17 said you were going to do it. ,, 18 Michelle states, "Screen for pesticides 19 written? I don't think it says anything in the plan 20 that says we are going to screen for pesticides. We 21 verbally said we are going to do that for anything 22 in the mitigation area. " 23 And he said, "I am sorry. " 24 She said, "We will do that before we use 25 any soils for mitigation. We will screen for Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda70f1 ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 52 1 pesticides . " 2 Do you know, Mr. Hankins, what she is 3 referring to? 4 A When she says "screen for pesticides"? 5 Q Before we use any soils for mitigation? 6 A I am not specifically knowledgeable about 7 the mitigation portion of the project. 8 Q So your answer there might be similar to 9 your answer about she made some statement concerning 10 that screen tests will be conducted for pesticides 11 prior to soil excavation and reuse on the Evergreen 12 Walk project. 13 And you stated -- correct me if I am 14 wrong -- that you were not aware one way or the 15 other whether these tests were conducted. Is that a 16 fair statement? 17 A Correct. 18 Q So as far as this dialogue with 19 Commissioner Forzley on page 21, is it fair to say 20 that you are not aware whether this was done or 21 wasn' t done?. 22 A That is correct. 23 Q Okay. Do you recall having any 24 discussions with Michelle Carlson concerning the 25 soil screening and the riparian buffer referred to Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda7Of1 ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins r 1 in Plaintiff 's Exhibit 4? Page 53 2 A I don' t remember any specific discussions 3 on how that would work. 4 Q So, therefore, you don' t recall whether 5 you had any recommendation concerning the screening 6 of soils in the proposed riparian buffer area? 7 A I don't recall have a specific 8 recommendation on that. 9 Q Okay. Have you ever made recommendations .10 concerning the screening of soils being moved as a 11z. part of grading at any other part of the Evergreen 12 Walk site? 13 A Yes. I think I talked about that already, 14.. - that the large stockpile they have on the site, we 15 sampled it, and I am already on the record as to 16 what my recommendations were with that. 17 Q So the only other -- when I say "only, " I 18 don' t use that in any majorative sense but to try to 19 define what has occurred -- the only other 20 recommendations that you have made concerning the 21 screening of soils, other than the 2000 soil 22 sampling, would be this sampling we referred to in 23 2004? 24 A That is correct. 25 Q Okay. Have you ever made any Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda70f1 ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 54 1 recommendations concerning soil samplings that were 2 rejected by any party because of a cost factor at 3 the Evergreen Walk site? 4 A No. Not that I am aware of . 5 Q Okay. Do you know whether excavation or 6 grading at the Evergreen Walk site, including the 7 Lifestyle Center has involved any placements of 8 soils from the riparian buffer area? 9 A I am not aware of that. 10 MR. KING: I am going to ask to be 11 marked for identification verbatim 12 minutes, as described, of a public hearing 13 before the Planning and Zoning Commission 14 on July 2, 2003 29, 2003 involving the 15 shops at Evergreen Walk. 16 17 (Hankins Exhibit 5 : 18 Marked for identification. ) 19 20 Q Mr. Hankins, have you had an opportunity 21 to look at Plaintiff's Exhibit 5? 22 A . Just to see what it is, yes. 23 Q Specifically I am going to direct your 24 attention to pages 60 through 62 of Plaintiffs 25 Exhibit 5 . Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda70f1 ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 55. 1 I am directing -- looking at -- this is 2 the testimony that you provided. I take it that 3 what you are referring to here is the 2000 soil 4 sampling that was done as commissioned by Attorney 5 Rubinow. 6 MR. RAY: I object to the form. John, 7 can you specify? 8 MR. KING: Sure. 9 MR. RAY: When you say "testified 10 here, " can we define what "here" is, 11. please? 12 MR. KING: I am sorry. 13 BY MR. KING: 14._ Q When you testified on July 2, 2003, at 15 pages 60 through 62 where you were referring to soil 16 sampling as commissioned by Attoreny Rubinow, as you 17 previously testified to today in 2000 -- 18 A Yes. 19 Q Okay. . And you testified, about a third of 20 the way down on page 61 of Plaintiffs Exhibit 4, 21 that none of the considerations -- "none of the 22 concentrations that we detected in our limited 23 survey on the Lifestyle Center property exceeded the 24 direct exposure criteria listed in the remediation 25 standard regulations which are commonly used as a Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda70f1ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins s I Page 56 1 rough guideline for planning purposes . " 2 That is -- I now understand it -- correct 3 me if I am wrong -- the residential exposure, RSR; 4 is that correct? 5 A Residential direct exposure criteria. 6 Q Residential direct exposure. That was 7 limited to- the issue of human health? 8 A Yes. 9 Q You testify, "We concluded that for the 10 purpose of planning, the limited pesticides sampling 11 that we conducted was quite sufficient. What did 12 you mean by the "purpose of planning" it was quite 13 sufficient? 14 A We had enough data to satisfy ourselves 15 that the site, as a whole, met the direct exposure 16 criteria for residential, and it was not a human 17 health risk that needed to be considered during the 18 development. 19 Q Okay. That. was -- the human health was 20 the focus of your sampling? 21 A Yes . 22 MR. KING: Could we go off the record? 23 (Off the record discussion. ) 24 25 (Whereupon, a recess was taken from . Brandon Smith Reporting 8587879o--1331-4f82-b923-dcda70flffaa Pavillions at Buckland Hills vs Evergreen $/26/2004 John B. Hankins Page 57 1 11 :44 o ' clock a.m. until 11 : 55 o' clock 2 a.m. ) 3 4 MR. KING: I would ask to be marked 5 for identification that which is described 6 as "verbatim minutes" dated July 16, 2003 7 2000, Inland Wetland Agency Conservation 8 Commission of the Town of South Windsor. 9 (Hankins Exhibit 6: 10 Marked for identification. ) 1.1 12 BY MR. KING: i 13 Q Mr. Hankins, I have some questions for you 14 with regard to, at least initially, pages 39 through 15 45 of Plaintiffs Exhibit 6. 16 This is the testimony of Mr. Titus. 17 A Yes. 18 Q Starting at the bottom of page 39 he 19 refers to an EDB, Vorlex, V-o-r-l-e-x, map for South 20 Windsor. 21 I believe this is a 1985 map produced by 22 the Department of Public Health and DEP. And on the 23 next page he states, "The shops exist right here 24 along Buckland Road, within this area that has been 25 mapped as a known EDB area by DPH and DEP. Brandon Smith Reporting 6587679e-1331-4f82-b823-dcda7oflffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 58 1 "What we also know is that detection of 2 EDB has been found all along Smith Street here and 3 all along Park Street here" . 4 Can you comment on that statement, 5 Mr. Hankins? 6 MR. RAY: I object to the form. Go 7 ahead. 8 THE WITNESS: My understanding is that 9 these two compounds, EDB and Vorlex, have 10 been used historically by the tobacco 11 industry. 12 And that the ground water in this 13 entire southern section of South Windsor 14 has been impacted by these compounds. 15 That ' s the subject of the -- this EDB 16 Vorlex map that ' s referenced here. 17 As I understand it, that map shows the 18 extent of the contamination. 19 BY MR. KING: 20 Q And Mr. Hankins goes on to state -- 21 MR. RAY: Titus . 22 MR. KING: Mr. Titus . Thank you. 23 BY MR. KING: 24 Q -- goes on to state -- page 40, about a 25 third the way down, that in that investigation they Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda70f1ifaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins 1 found things like Dieldrin, DDT, Heptachlor-Epoxide, Page 59 2 which obviously are all pesticides . 3 To your knowledge, is that an accurate 4 statement? 5 A Yes, that statement is with reference to a 6 project we did at a place called the Terry Office 7 Park. 8 Q Right . 9 A I don' t have the report in front of me, 10 but I know we found pesticides, and these would be 11 the typical of the kinds of things we would have 12. found. 13 A Okay. 14 Q Looking at page 41 of Plaintiffs Exhibit 15 6, Mr. Titus talks about -- I will quote what he 16 testifies to, about a third of the way down, . he 17 states, "That is true and nobody is disputing that 18 point. " That is referring back to the deep bedrock 19 point, I believe, Mr. Hankins, in your testimony. 20 "But what I would like to point out to the 21 Commission is that pesticides, EDB included, are 22 applied to plants at the surface. " Is that a true 23 statement, to your knowledge. 24 A Yes . 25 Q You testified -- and. what is making me Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda70f1 ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 60 1 recall this, I am at page 45 of Plaintiffs Exhibit 2 6, but it reminds me of your testimony that the 3 criteria used in the 2000 soil sampling was the -- 4 correct me if I am wrong -- the residential 5 exposure -- 6 A Direct exposure criteria. 7 Q Direct exposure criteria, with the 8 emphasis on human health; is that correct? 9 A That is correct. 10 Q Is the .ground water -- if you know, how is 11 the ground water characterized by DEP in this area, 12 GA, GB, if you know? 13 A I don' t specifically recall . 14 Q Okay. What is the difference between a GA 15 and GB, if you know? 16 A A GB area is an area where the state knows 17 or presumes that the ground water is impacted, and 18 the drilling of additional wells in an area like 19 that is generally prohibited. 20 The GA area is presumed that the ground 21 water quality is okay or it' s the DEP' s desire to 22 bring that into a condition consistent with drinking 23 water standards . 24 Q Okay. Mr. Titus states in the bottom of 2*5 page 45, and it runs over to the top of page 46, and Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda70f1 ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins 1 I will quote . "I don' t know that the applicant is Page 61 2 prepared to assert that there are not any 3 downgrading receptors, including private supply 4 wells that couldn' t be impacted by the subsequent 5 mobilization of any pesticides that may or may not 6 _ be there. " 7 Is that a true statement in your opinion? 8 MR. RAY: Object to the form only 9 because I am having difficulty trying to 10 figure out what Mr. Titus was actually �-11 saying. 12 MR. KING: I withdraw the question. 13 BY MR. KING: 14 Q Do you understand what Mr. Titus was 15 stating in that? 16 A What I -- 17 Q Certainly feel free to paraphrase however 18 you need. 19 A It ' s our understanding there was no 20 private supply wells in this area. 21 Q What is that understanding based on, 22 Mr. Hankins? 23 A It ' s based on the fact that there was a 24 consent order, as I understand it, between the town 25 of South Windsor and the State Department of Brandon:Smith Reporting 6587679e-1331-4f82-b923-dcda7oflffaa Pavillions at Buckland Hills vs Evergreen 8/26/2OO4 John B. Hankins Page 62 1 Environmental Protection that goes back to the 2 eighties, and that the state supplied public water 3 to this area -- or the town supplied public water as 4 requirement of that consent order. 5 Q Okay. 6 1 MR. KING: I am going to ask that the 7 described verbatim minutes of the Town of 8 South Windsor Inland Wetland Agency 9 Conservation Commission dated September 3, 10 2003 be marked for identification, I 11 believe as Plaintiffs 7. 12 i 13 (Hankins Exhibit 7 : 14 Marked for identification. ) 15 16 BY MR. KING: 17 Q I am directing your attention, Mr. 18 Hankins, to pages 19 and 20 of Plaintiffs Exhibit 7, 19 and specifically the testimony beginning at the 20 middle of page 19, and you state, Fuss & O'Neill, 21 actually, a number of years ago took a series of 22 soil samples at this site as part of the developer' s 23 due diligence process . 24 "As we would expect we did detect trace 25 levels of pesticides in several of the samples that Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda70flffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 63 1 were collected. " 2 Am I correct in assuming that is the 2000 3 soil sampling commissioned by Attorney Rubinow that 4 you previously testified concerning? 5 A That is correct . 6 Q Okay. You go on to state, "But, 7 concentrations that ' s we detected were consistent 8 with what I have seen in other areas of South 9 Windsor, and actually the concentrations meet not 10 only the industrial/commercial criteria that the DEP 11 used as guidelines, but they actually meet the 12 residential standards . " 13 What was the basis for your statement that 14: the concentrations met the industrial/commercial 15 criteria that DEP uses? 16 A Well, I stated before that the results 17 typically meet the residential standards . The 18 industrial/commercial criteria are either the same 19 or higher in every circumstance. 20 Q Okay. Then you testified, "Based on the 21 results of that sampling that we conducted, it's my 22 conclusion that the presence of pesticides really 23 will have no effect on development whatsoever. " 24 What did you mean by that.? 25 A I meant that there would need to be no Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda70f1 ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 64 1 specific on-site handling, on-site soil management 2 techniques beyond what you have on any other 3 development property. 4 Q That was based on the 2000 sampling? 5 A That is correct . 6 Q Would your opinion change or has your 7 opinion changed based on the most recent sampling 8 results that you have testified to this morning? 9 A No. 10 Q Why is that? 11 . A We always assumed, since the beginning of 12 this project, that the soils have the potential to 13 leach pesticides . 14 Q Okay. So whether the soils do or do not 15 have the potential to leach pesticides, that would 16 not affect the handling in terms of the development 17 process? 18 A No. I will put a caveat on that. 19 Q Okay. 20 A We recommended at the outset of this 21 project that the soils be managed on site, because 22 of the presence of pesticides. -23 Q Okay. 24 A As long as the development -- as long as 25 the soil management stays consistent with that - Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda7Of1ffaa Pavillions at Bucklanci Hills vs Evergreen 8/26/2004 John B. Hankins Page 65 1 original recommendation, there is no - there is -- 2 the presence of leachable pesticides in analytical 3 data has no effect on our recommendation. 4 Q Your recommendation -- and again, correct 5 me if I am paraphrasing you incorrectly -- your 6 recommendation or Fuss & O'Neill recommendation was 7 to some extent the conservative recommendation, to 8 assume the issue of- leachability and let 's deal with 9 it based on that assumption? 10 A That 's correct. 11 Q Okay. Later on there is this dialogue 12 between Commissioner Forzley and you, and he 13 states -- I will just read through this very 14. quickly -- "What does that mean, ' it meets the 15 residential standards . John, when you say that, 16 what can you do with that soil? Anything you want. 17 You can play in it. You can plant a garden with it . 18 Well, when I say 'anything you want, ' anything you 19 want within the site boundaries. But that 's right. 20 Workers could be exposed to it, yes . Thank you. ,, 21 Could you paraphrase what you meant in 22 that dialogue? 23 A This is completely consistent with the 24 statement I just made. 25 Q Okay. As long as it 's managed on site, in Brandon Smith Reporting 6587679e-1331-082-023-dcdaMf1 ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 66 1 the opinion of Fuss & O'Neill, it ' s being properly 2 managed? 3 A That is correct . 4 Q Okay. Since the construction activity on 5 the site, as we have defined it, has been done, is 6 it accurate to say that the only soil sampling which 7 has been taken is the soil sampling that you have 8 testified to today, the more recent results in 9 August and the earlier sampling this year? 10 A I don't know if that' s accurate. The only 11 sampling I am familiar is the -- 12 Q Okay. 13 A -- the sampling that I referred to 14 earlier. 15 Q Thank you. A moment ago you testified to 16 a question that I had asked about whether the 17 results of -- the more recent results of the 18 sampling versus the 2000 results would affect the 19 management of the site as suggested by Fuss & 20 O'Neill, and your answer was it would not. 21 A I said it would not as long as the soil is 22 managed on site. That is correct. 23 Q Okay. Is there any -- if you know, within 24 a GA area is there any prohibition with regard to 25 placement of impacted material on unimpacted Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda7Oflffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins 1 material? Page 67 2 A Remediation standard regulations include 3 such language. It ' s unclear to me whether the 4 remediation standard regulations would apply to this 5 site. 6 Q Okay, but if the guidelines applied to 7 this site, that ' s what the guidelines would state, 8 would they not? If you took the -- withdraw that 9 question. 10 If you sought to be consistent with the 1"1 guidelines, as opposed .to the mandates of the RSR,. 12 the guidelines would state that impacted material t 13 should not be placed upon unimpacted material in a 14 GA area? 15 A Generally true, yes . 16 Q Okay. Now, earlier I believe you stated 17 that your license was a LEP license. 18 A Yes . 19 Q And that allows you to provide 20 verification for sites to which the transfer is 21 applicable? 22 A Correct . 23 Q And this site is not a site to which the 24 LEP applies; is that correct? 25 A That is correct. Brandon Smith Reporting 6587679e-13314f82-b923-dcda7ofl ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 68 1 Q If you know, knowing what you know about 2 the site now, given the various samples, if the -- 3 if this were a site to which the LEP did apply, 4 would you be able to verify the site, as a 5 professional? 6 A Not without some agreement with the DEP 7 with regard to the pollutant mobility criteria. 8 Q Okay. Why is that, Mr. Hankins? 9 A We are not -- we would not be in 10 compliance with the pollutant mobility criteria 11 based on the results we have taken. 12 Q Okay. In order to come into compliance 13 under the Transfer Act, assuming the Transfer Act 14 would be applicable, you would have to go to the DEP 15 and work out some agreement? 16 A I think that ' s the way it would be done, 17 yes . 18 Q Okay. Under the RSRs is the distinction 19 made between protection of human health and 20 protection of the environment? 21 A There are no numeric criteria that ,22 specifically apply to protection of environment. -- 23 Q But the BKRRss correct me if I am - 24 wrong -- as I understand it, there are RSRs that 25 would be focused primarily on human health, and then Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda7Of1 ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 � John B.Hankins 1 there are other RSRs that would be focused -- Page 69 2 correct me if I am wrong -- there are other RSRs 3 that would be focused primarily on the environment? 4 A Yes . Those are primarily the ones that 5 deal with surface water protection criteria. 6 Q Okay. But they would also deal with 7 ground water, would they not? 8 A Only to the extent it impacts surface 9 water quality. 10 Q Mr. Hankins, back to some of the questions 11 that we were dealing with at the outset with regard 12 to the Connecticut regulatory programs involving ,s 13 soil and ground water contamination. 14 I believe you testified concerning your 15 work licenses and your positions. Could you just 16 sort of generally describe your experience, 17 Mr. Hankins, to the various Connecticut regulatory 18 programs concerning soil and ground water 19 contamination? 20 A My experience with those programs? 21 Q Yes. 22 A I have worked on underground storage tank 23 regulations; I have worked under the hazardous waste 24 regulations, RCRA, R-C-R-A, , as they are referred to. 25 I have done numerous investigations under the Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda70flffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 70 1 Property Transfer Act, under voluntary programs -- 2 both the Transfer Act and the voluntary programs 3 cite the remediation standard regulations as the 4 remedial end point . 5 Q Okay. What I would like to do. 6 MR. KING: Could we go off the record? 7 (Discussion off the record. ) 8 BY MR. KING: 9 Q Just a few more questions, Mr. Hankins . 10 Going back to the issue of pollution mobility 11 criteria -- pollutant mobility criteria. Is it your 12 testimony that this criteria is not related to human t 13 health? 14 A It ' s quite related to human health in 15 instances where there is the potential for humans to 16 drink the ground water beneath the impacted area. 17 We see -- we do not see that potential in 18 this area, so it ' s not an issue related to human 19 health here . 20 Q What if this area were categorized as a GA 21 area? 22 A That would not make a specific difference. 23 It doesn't change whether people are drinking the 24 water. This area has been recognized by -- for a 25 long time by the DEP as area that's been impacted by Brandon Smith Reporting 6687679e-1331-4f82-b823-dcda70f1 ffaa ' Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins 1 Vorlex and EBD, as we discussed earlier, and Page 71 2 therefore, DEP is assured that public water would be 3 available to this entire area. 4 Q Okay. If this site were applicable -- if 5 the Transfer Act were applicable to this site, you 6 could not provide -- I believe you testified you 7 would not be able to provide verification without 8 going to DEP; is that correct? 9 A We would have to work something out with 10 DEP; that is true. 11 Q Why is that? 12 A Because the Property Transfer Act, 13 remediation standard regulations don' t include a 14 specific exemption for pesticides. 15 Q But if this were an. area where it was all 16 public drinking water, you would still have to go to 17 DEP? 18 A Yes, you would. 19 Q Okay. Because -- the reason is because 20 there is no exemption for pesticides? 21 A And it ' s a GA ground water area, as I 22 understand it. 23 Q Okay. Has Fuss & O'Neill done any surface 24 water sampling, to your knowledge? 25 A I am not aware of any. Brandon Smith Reporting 6587679e-1331-4f82-b923-doda70f1 ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B.Hankins Page 72 1 Q Okay. Could this pollutant mobility 2 criteria in the results of the most recent sample -- 3 does that mean there could be an impact on wetlands 4 from the existence of these pesticides? 5 A That ' s a possibility. 6 Q And what studies, if any, have been 7 undertaken by Fuss & O'Neill to determine the impact 8 on wetlands? 9 A None that I am aware of. 10 Q You also mentioned -- we talked a little 11 bit about the impacted soil being placed on the 12 unimpacted soil in a GA area. To your knowledge 13 what protocol is in place in terms of the management 14 of the soil to ensure compliance with applicable 15 RSRs? 16 Q You said "applicable RSRs"? 17 A Yes . 18 Q The RSRs are not applicable? 19 Q Okay. What protocol is in management -- I 20 am sorry -- withdrawn that . 21 What protocol is in place to ensure that 22 the management of the soil is consistent with the 23 RSR guidelines? 24 A The entire area in question has been used 25 for tobacco farming. The sampling we have studied Brandon Smith Reporting 6587679e-1331-4f82-b92Ucda70fl ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B..Hankins Page 73 1 has indicated that to one level or another the 2 entire area, as you would expect, contains residual 3 pesticides; therefore, there is no limitation on 4 where the soil can be used on the site, with the 5 possible exception of wetland areas, of course. 6 Q But you also testified, I believe, that 7 impacted soil cannot be placed on unimpacted soil in 8 a GA area; is that correct 9 A I said that, yes 10 Q What protocol is in place to ensure that .11 that has not in fact occurred? 12 A I think I answered that question a minute 13 ago. 14 Q Okay? 15 A It 's assumed from the data that we have 16 that the entire area has been impacted. 17 Q Okay. So you say -- what you are saying 18 is, beyond the understanding that all of this soil 19 has to be managed on site, there are additional 20 protocols for the management of the soil? 21 MR. RAY: I object to the form. It 22 may be me getting confused now, but I 23 thought his testimony was that that 24 assumed that the Transfer .Act applied, 25 which he didn't necessarily agree with. Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda70f1ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 74 1 That that was a predicate for all of this . 2 MR. KING: I don' t think so. I 3 think -- 4 MR. RAY: Okay. 5 MR. KING: -- it ' s a predicate for the 6 necessity of verification. 7 BY MR. KING: 8 Q But my question is: If you assume this 9 area to be the area, as you have described, the 10 historical pesticide contamination, if you will, I 11 believe it ' s your testimony; irrespective of whether 12 the Transfer Act applies, that the soil needs to be 13 managed on site? 14 A That ' s my recommendation. 15 Q Okay. 16 A The remediation standard regulations, 17 which don't specifically apply here -- 18 Q Right. 19 A The remediation standard regulations are 20 the body of regulations that lay out the information 21 you indicated a minute ago? 22 Q Right . 23 A Which was, can you put soil with 24 pesticides residues in a GA area that doesn' t have 25 pesticides residues. Brandon Smith Reporting 6587679e-13314f82-b923-dcda70f1 ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins 1 Q Right . Page 75 2 A That ' s in the remediation standard 3 regulations that don' t apply here . 4 Q Okay. 5 A To the extent you need to take those 6 steps, it ' s a guideline from DEP, not a regulation. 7 Q Okay. 8 A Nevertheless, that 's a -- it ' s a guideline 9 that is consistent with what I believe is being done 10 on this site. 11 - Q My question is : What is being done on the 12 site in terms of soil management from a protocol J 13 standpoint, other than ensuring that the soil is 14 managed on site? 15 A That ' s the key component that you just 16 described. Beyond that I am not familiar with the 17 soil -- their soil management protocols . 18 Q Okay. So beyond management on site you 19 are not familiar with the soil management protocols 20 that are being employed? 21 A That ' s true. 22 Q Okay. And you don' t know whether or not 23 there are specifications or plans _for_ soil 24 management, other than maintaining it on site? 25 A I am not familiar with them. There may be Brandon Smith Reporting 6587679e=1331-4f82-b923-dcda7Of1 ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 76 1 and there may not . 2 Q Okay. And has -- in light of the most 3 recent samplings, has there been any contact between 4 or among Poag & McEwen and Fuss & O'Neill and DEPin 5 connection with these most recent sampling results? 6 A The only communication I am aware of has 7 been between myself and Poag & McEwen directly. 8 Q Do you know, at least as we are sitting 9 here now, whether there will be communication with 10 DEP .or any other agency? 11 A I don' t know that. 12 Q Would you have a recommendation? i 13 A No. 14 Q Okay. . 15 MR. KING: I have nothing further, 16 other than I would, I guess the proper 17 word is "adjourn" the deposition, because 18 of the fact that we do have the 19 outstanding motion dealing with the 20 question of documents. 21 Depending on how that motion is 22 resolved, we may be resuming the -23 deposition at a future date, and I reserve 24 the right to do that. 25 I have nothing further today. Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda7Of1 ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 77 1 MR. RAY: I have nothing further. 2 3 (Whereupon, the deposition was 4 adjourned at 12 :45 o ' clock p.m. ) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda7Of1ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 78 1 JURAT 2 I, JOHN B. HANKINS do hereby certify that 3 the foregoing testimony given by me on August 26, 4 2004 is true and accurate, including any 5 corrections noted on the corrections page, to the 6 best of my knowledge and belief . 7 8 9 10 JOHN B. HANKINS . 11 12 At in said County of i 13 this day of 14 2004, personally appeared JOHN B. 15 HANKINS, and he made oath to the truth of the 16 foregoing corrections by him subscribed. 17 18 19 Before me, Notary Public. 20 My Commission expires: 21 22 23 24 25 Brandon Smith Reporting 6587679e-1331-4f82-b923-doda70f1 ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins Page 79 1 TRANSCRIPT CORRECTIONS 2 REPORTER: JENNY EBNER 3 CASE STYLE: PAVILIONS at BUCKLAND HILLS, LLC 4 VS 5 EVERGREEN WALK,LLC, ET AL. 6 PAGE LINE CORRECTION 7 8 9 10 11 12 t s 13 14 15 16 17 18 19 20 21 22 JOHN B. HANKINS 23 DATE: 24 25 Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda70f1ffaa Pavillions at Buckland Hills vs Evergreen 8/26/2004 John B. Hankins 4 Page 80 1 STATE OF CONNECTICUT 2 I, JENNY C. EBNER, a Registered Professional Reporter/Commissioner within and for 3 the State of Connecticut, do hereby certify that pursuant to Notice I took the deposition of JOHN B. 4 HANKINS, on August 26, 2004, at the offices of Updike, Kelly & Spellacy, 24th Floor, Hartford, 5 Connecticut . 6 I further certify that the above named deponent was by me first duly sworn to testify to 7 the truth and nothing but the truth concerning his knowledge in the matter of the case of PAVILIONS at 8 BUCKLAND HILLS, LLC VS EVERGREEN WALK,LLC, ET AL. , now pending in the Superior Court Complex Litigation 9 at New Britain, Connecticut. 10 I further certify that the within testimony was taken by me stenographically and 11 reduced to typewritten form under my direction by means of COMPUTER ASSISTED TRANSCRIPTION; and I 12 further certify that said deposition is a true record of the testimony given by said witness . 13 I further certify that I am neither 14 counsel for, related to, nor employed by any of the parties to the action in which this deposition was 15 taken; and further, that I am not a relative or employee of any attorney or counsel employed by the 16 parties hereto, nor financially or otherwise interested in the outcome of the action. 17 WITNESS my hand and seal this �-] day of 18 19 1 I 20 21 22 Jenny C. Ebner, R.P.R. , L.S.R. Commissioner -.-23 24 My Commission expires: August 31, 2005 25 License Registration Number: 00030 Brandon Smith Reporting 6587679e-1331-4f82-b923-dcda70f 1 ffaa q �aY or PM E11��t® • ENSR International 2 Technology Park Drive 11 Phelps Way/PO Box 506 Westford,MA 01886 Willington,CT 06279 (978)589-3000 (860)429-5323 FAX(978)589-3035 FAX(860)429-5378 www.ensr.com August 30, 2004 John King, Esquire Updike, Kelly and Spellacy, P.C. One State Street P.O. Box 231277 Hartford, CT 06123-1277 Re: L.A. Fitness at Evergreen Walk, 151 Buckland Road, South Windsor, CT Updated Review of Proposed Grading and Storm Water Management Design Dear Attorney King: As requested, ENSR has conducted an updated review of the project plans and associated documents filed with the South Windsor Inland Wetlands, Watercourses and Conservation (IWWC) application for the above-referenced project. This review is based on plans and drainage calculations prepared by the project proponent and revised through August 18, 2004. Our review has focused on the proposed grading of the site relative to wetland resource areas identified on the site plans, and the proposed management of storm water runoff from the site. Based on ENSR's review of the application, design drawings, and associated information we have received to date, we offer the following comments: 1. The project proposes to collect stormwater runoff and discharge it to a roughly 200-foot long created swale that runs parallel to the proposed access road connecting the LA Fitness site to the vicinity of The Shops at Evergreen Walk. The swale would discharge runoff from the LA Fitness site to an existing intermittent watercourse located to the south of the property, and west of a proposed culvert under the proposed access road connector. It is unclear why this option of stormwater conveyance was selected, as it diverts runoff from the existing site of the fitness center away from its natural outlet, and directs this runoff to a different watercourse. Other options would appear to be available that would result in less long-term disturbance to the proposed receiving watercourse. Such alternative options would also better maintain the hydrology of the watercourse and associated wetlands that receive the runoff under existing conditions. 2. Under current conditions, the area proposed for development by this application drains overland due west to a wetland/watercourse indicated as Wetland 3A on the "Proposed Riparian Buffer" drawing (07/10/03) that was prepared in connection with the filing for The Shops at Evergreen Walk. This outlet comprises a different headwater watercourse than the one to which drainage will be directed. The proposed stormwater drainage plan diverts the drainage to the ENSR International Review of LA Fitness at Evergreen Walk, South Windsor, CT August 30, 2004 Page 2 southwest to the wetland/watercourse system designated as Wetland 2and -- Wetland 3 (as shown on the "Proposed Riparian Buffer' plan). The effects of this drainage alteration on the watercourses and wetlands should be evaluated. 3. The proposed swale provides for no opportunity to control the peak rate of runoff from the site. Consequently, as demonstrated in the drainage report for the application, there are notable increases in peak discharges from the "project site". For example, 10-year storm discharges are shown to roughly double (from 12.68 cfs to 24.27 cfs). As noted above, much of the proposed runoff will be generated from an area that does not currently drain to the affected watercourse. The impacts of these increased discharges on the receiving watercourse should be evaluated. We note that the Sharpe report states that this "watercourse is badly eroded in places." The proposed increases in flow could exacerbate this condition, resulting in increased sedimentation downstream in Plum Gulley Brook and its wetlands. To my knowledge, there has been no requirement for environmental monitoring on the site to assess impacts of this type. At a minimum, construction-phase monitoring of suspended sediment/turbidity levels in the Brook upstream and downstream of the site would be a useful barometer -- of impacts. 4. While the drainage information provides projected flow changes in Plum Gulley Brook downstream of this development site, as ENSR has commented on previously the modeling used for that larger watershed analysis has not been made available for review by us; our previous comments on this would therefore continue to apply. 5. Rain gardens are indicated on the plans, but there does not appear to be any information documenting that they have been sized and distributed to be effective. 6. While the Evergreen Walk master plan showed a development footprint on this development area that appears comparable to that currently proposed, it did not clearly indicate the proposed diversion of runoff away from one watercourse/wetland system and into another watercourse/wetland system. Additional office buildings and parking are indicated on the master plan west of the L.A. Fitness site, with additional encroachments into wetland buffers even before the siting of stormwater management facilities. Stormwater management controls for this additional development will likely require additional encroachment toward wetlands and watercourses, and result in additional peak rates of flow at localized discharge points, if managed in a manner as currently proposed. As we have recommended previously, a more comprehensive consideration of the stormwater runoff from each subwatershed under the full development program is in order to avoid the effects of piecemeal development without master drainage planning. We note that the application form for this site describes the "land area of this project" as 85.65 acres; if subsequent • r^s Eb Ot ENSR International Review of LA Fitness at Evergreen Walk, South Windsor, CT August 30,2004 Page 3 development is proposed on this land area as indicated in the master plan, each separate building and related parking/roadway area should not be addressed as distinct proposals. As a result of these considerations, ENSR recommends that an alternative method of stormwater management be considered for this phase of site development. A stormwater detention basin, designed per the CTDEP standards, located in the open field portion of the site immediately adjacent to the proposed development area, and discharging to Wetland 3A, would appear to be a preferred alternative, addressing virtually all the issues discussed above. It would have less potential for sediment/erosion control issues during construction, provide peak rate control and improved water quality treatment, and better maintain the existing hydrologic regime of the down-slope wetland systems. Such a stormwater basin could discharge at the vicinity of the existing drainage pipe that serves Buckland Road, to minimize additional impacts to wetland areas. It is our opinion that this would be a prudent and feasible alternative to the currently proposed plan that would reduce impacts to wetland/watercourse and buffer areas. Please contact me with any questions regarding these comments. Sincerely, %RJJ ' Dennis Lowry Senior Program Manager/Ecologist IF M OLE FLB Architecture &Planning, Inc. 19 Silver Lane East Hartford CT 06118 (860)5684030 fax: (860)568-5129 e-mail:flb@flbarch.com web:www.fibamh.com September,2, 2004 Inland Wetland Agency/Conservation Commission Town of South Windsor 1540 Sullivan Avenue South Windsor, CT 06074 Re: L.A. Fitness Application#04-38P Dear Commission members, This letter shall serve as the agreement by the applicant to extend the time for completion of the public hearings on the subject application to Thursday, September 16, 2004. Very truly yours, -7 � l� 'x_ Frank Hubeny, AICP Senior Planner c: file Atty. John Mallin Evergreen Walk, LLC P:1Projects\99508.02\FLB_ZoneUWCC 040902.Doc a Y 1 Updike, Kelly & Spellacy, P.C. Counselors at Law Hartford New Haven Stamford One State Street,P.O. Box 231277 TT Hartford, Connecticut 06123-1277 Tff M E R I TA 5 Telephone(860)548-2600 LAW FIRMS WORLDWIDE Facsimile(860)548-2680 John C. King (860)548-2608 {` (860)548-2680 Fax jking@uks.com ,St p September 7, 2004 100T8wjNDS 2'904 �RP1ANNNo11FPT South Windsor Inland Wetlands Agency/Conservation Commission 1540 Sullivan Avenue South Windsor, CT 06074-2786 RE: , Application No. 04-38P—LA Fitness at Evergreen Walk Dear Chairwoman Warren and Members of the Commission: As per the discussion and motion adopted by the Inland Wetlands Agency/Conservation Commission on September 1, 2004, I enclose the correspondence of Daniel D. Titus, P.G., Project Manager of HRP Associates Inc., which is labeled Pesticide Concentrations Above CT DEP Guidelines at the L.A. Fitness Center and Evergreen Walk Project in South Windsor, Connecticut(HRP#UPD0007.HG), dated September 7, 2004. Attached to Mr. Titus' correspondence is the Department of Environmental Protection("DEP") document, captioned General Guidance on Development of Former Agricultural Properties (March, 1999). I enclose also the complete deposition transcript of John B. Hankins, dated August 26, 2004. Without repeating what is stated in Mr. Titus' correspondence, I wish to highlight briefly a few points from the deposition. At Fuss & O'Neill, Mr. Hankins position is Vice President and Director of Environmental Assessment Services. I direct your attention to page 28 of the deposition wherein Mr. Hankins,having testified concerning the issue of concentrations of leachable pesticides and comparing those to the DEP pollutant mobility criteria, acknowledged that, for the first time in 2004, soil samples were analyzed for both total and leachable pesticides. On page 29,Mr. Hankins acknowledged that"the soils did not meet what is called a groundwater protection criteria,which is what you compare leaching results to." Mr. Hankins acknowledged in the deposition that the soil has pollutants which potentially could leach to the groundwater and the groundwater at the site is categorized by DEP as GA, which means suitable for drinking or that the goal is that the groundwater become suitable for drinking. Mr. Hankins testified that, other than the sampling results which were presented to the commission on September 1, 2004, relating solely to residential direct exposure and not the issue of leachability into the soil, he is ' -Updike, Kelly & Spellacy, P.C. r Ms. Elizabeth Warren, Chairwoman September 7, 2004 Page 2 not aware of any other soil sampling until the soil sampling which occurred in August 2004. He further testified that, beyond management on-site,he is not familiar with the soil management protocols that are being employed. Finally,he testified that he does not know whether there will be any communication with DEP or any other agency, including the Town of South Windsor, concerning the most recent soil sampling results and that he would have no recommendation concerning communication with the DEP or any other agency. Having made these brief points, respectfully, I direct your attention to Mr. Titus' correspondence and the transcript. Should you have any questions or comments,please feel free to contact the undersigned. Thank you for your courtesy and consideration. 1 ge i JKING JCK:msc Enclosures cc: Charles D. Ray, Esq. (with enclosures) Barry D. Guliano, Esq. (with enclosures) r/V4 I" ia:1U FAX 860 793 3418 HRP ASSOCIATES ` - � 191002 iii,RLUD ENVIPONMENYAL/CIVIL ENGINEERING & HYDROGEOLOGY September 7, 2004 Mr. John King Updike, Kelly & Spellacy, P.C. One State Street P.O. Box 231277 CONNECTICUT Hartford, CT 06123-1277 167New13rlfalnAvenue Plainville,CT 06062 600-246-9021 RE: PESTICIDE COCENTRATIONS ABOVE CT DEP GIUDELINES AT THE FAX860-7 3-6 L.A. FITNESS CENTER AND EVERGREEN WALK PROJECT IN SOUTH AXBGO-793-6871 WINDSOR, CONNECTICUT (HRP#UPD0007.H13) MASSACHUSETiS 220 Forbes Rood Dear Mr. King: Sulle404 Brolniree,MA 02184 800-351-5590 Pursuant to your request, and based upon my attendance at the August 26, 781.356-2944 2004 deposition of Mr. John B. Hankins of Fuss & O'Neill Inc. of Manchester FAX7$1-356-2409 Connecticut, I have again reviewed the relevant and available documents for the projects generally referred to as Evergreen Walk, including the proposed NEWYORK L.A. Fitness Center. I am, as I have been in the past, drawn to evaluate the 100 Saratoga milage Blvd, proposed development of this historical tobacco agricultural area relative to s"ft27 the March 1999 joint CT Department of Public Health and CT Department of se 823 427 Environmental Protection General Guidance on Development of Former Agri- 516-899-3011 cultural Properties (attached). To my knowledge, this is the only available MX518-899.8129 guidance addressing the issue of pesticide contaminated soils. As acknowl- edged by Mr, Hankins in his deposition (Hankins p. 51), this guidance is gen- PENNSYLVANIA erally regarded as the appropriate guide for evaluating and managing devel- 4811 Jone5b mRoad opment projects in agricultural areas such as this. As such, I believe it is in- sune235 structive to evaluate the development issues point by point with the 1999 Hbrrieburg,PA 17109 guidance and relative to the Hankins deposition as follows. 866-232-9824 p 717-920-1350 FAX 77 7-920-1359 1_ With respect to which pesticides are of particular concern the 1999 guidance states "primarily dieldrin, DDT and breakdown products, SOUTH CAROLINA chlordane, arsenics. 7001 Pelham Rood SulteJ Mr. Hankins indicates in his testimony that dieldrin, DDT and arsenic Grucnville.se?9615 have all been found at the site. 800-752,.3922 864-289.0311 Clearly the guidance was developed to address exactly this type of FAJC864.281-9846 site with these types of pesticides. 2. The guidance states that soils samples should be collected and "total www.hrpasseciates.com mass and leaching tests should be performed...'1. Mr. Hankins states in his deposition "Recently, 2004, we have con- ducted some sampling of soil piles that they have got at the site and analyzed those soil piles for both total and leachable pesticides." (Hankins p-28). J%U\UPDIK\ONE$TATEIIJPD0007.HG\L,A,Fitness-Hankins Depo.doo Creat/ng the Right Solutlons>•ogeiher vriuIiV% iuZ la:lU 11A3 ODU JUJ 4416 HRF ASSOCIATES Z003 r Mr, John King Page 2 September 7, 2004 1 would maintain that both mass and leachability testing of soil piles at this late date does not meet the spirit of the 1999 guidance, which envisions in situ tests prior to develop- ment, but nonetheless testing has been performed. In addition, the applicant's consultant has indicated to various town commissions that soil screening tests for pesticides will be conducted "prior to soil excavation" (see Hankins p. 46-48 and Carlson testimony from 7/2/03 Inland Wetland hearing). Obviously, such testing did not take place here. I would also note that, despite repeated requests, the applicant has only recently shared (9/1104) pesticide data from 9 samples collected June 22, 2000; however, we infer from deposition testimony that some 40 additional samples exist that have not been made available. Their apparent unwillingness to provide the data, in my opinion, raises questions as to their credibility on any matter of compliance with respect to this issue, 3. On sites where pesticides are detected the 1999 guidance indicates that the results should be compared to the Remediation Standard Regulation (RSR) values and "if some concen- trations are above the RSRs, the following options for managing the affected soil should be considered.". Mr Hankins states in his deposition "The leachability tests that we ran, we found that the soils did not meet what is called a ground water protection criteria, which is what you compare leaching results to."(Hankins p.29 and 68). As a potential consequence of this result Mr. Hankins offers that "That's a possibility" when asked if there could be an impact on site wetlands due to the pesticides (Hankins p. 72). It should be noted that Mr. Hankins is referring to the ground water protection criteria of the RSRs. Since the sampling results reveal exceedances of the RSR values, provides that guidance indicts additional management steps should be taken. To date, it appears obvious that no such management has taken place, despite the applicant's representation to the contractor. 4. The first management option offered by the 1999 guidance states "Keep affected soils separate from other soils and use it on site as fill under buildings, parking lots, or access roads or dispose of the soil in an approved landfill off site.': With respect to additional managements steps for the impacted soils Mr. Hankins states "We weren't asked to take the next step..." (Hankins p.30). In addition he states when asked if there are specific plans and specifications for pesticide impacted soils manage- ment that "I am not familiar with them. There may be and there may not."(Hankinsp.75- 76). We assume that, if the applicant's consulting engineer, who designed the earthwork plans and specifications for the project, is not aware of any management steps or plans and specifications then it is likely that none have been prepared. In addition, my review of the available project plans did not uncover any evidence that specific material management protocols, placement location plans (e.g. under buildings or parking lots) or tacking mechanisms are in place for the noted impacted soil. In the absence of these devices the JlU\UPDIK\ONE SrATE\UPD000,7.HG\L.A.Fitness-Hankins Depo.doa K\ Creofing the Right Solutions Together �VV4 Mr. John King Page 3 September 7, 2004 applicant has no way of measuring, inspecting or ensuring that impacted materials are managed in accordance with the DEP guidance. 5. The second management option offered with regard to soils stipulates that you can "Mix it with unaffected soils to decrease the effective soil concentration". Again, in the absence of any project plans and specifications to provide for mixing work it is highly unlikely to occur. Indeed, a site contractor would insist that they be paid for such an effort as it is beyond typical construction soil management practices. Without a specifi- cation to guide and measure the work done there would be no contractual method for payment and as such it would not be performed. 6. The third option given offers "Depending on the degree of RSR exceedance, consideration should be given, in consultation with DPH and DEP, to removal of specific hot spot ar- eas.'. When asked with whom the pesticide data had been shared Mr. Hankins responded, "The only communication I am aware of has been between myself and Poag & McEwen di- rectly."(Hankins p.76) Clearly, there is no evidence that DPH or DEP have been engaged to provide assistance or advice an opinion as to the appropriate protective measures for this site. As such, any representation by the applicant that either agency would accept their current practice is pure speculation. 7. Lastly, the 1999 guidance states that ulf affected soils are... kept on site...post- construc- tion surface soil sampling...fo ensure...reduced potential for direct exposure." should be considered and "If any soils containing pesticides above RSR values remain on site, the location of these affected soils should be recorded on a site map which is on file at the lo- cal health department. As I have previously noted, the engineering firm of record (i.e. F&O), according to Mr. Hankins, has received no solicitation for implementation of additional management steps from the applicant. Further, there is no indication in the available documents that the ap- plicant is contemplating any of the sampling and or mapping of affected soils as suggested in the guidance. On numerous occasions before this commission and others, the applicant has stipulated that they are in compliance with RSR criteria and will, or have, complied with the 1999 guidance. It is now clear, based upon a deposition taken under oath that the applicant has not complied and is in gross material violation of every elemental step of the 1999 guidance. As a defense, the appli- cant will tell you that the RSRs do not apply to this site. Nonetheless, by their consultant's ad- mission, they have apparently compared testing results to the direct exposure criteria of the RSR. It is generally accepted that the RSRs are the only state sanctioned set of criteria used for deter- mining what is safe and what is unsafe with respect to any uncontrolled contamination in the envi- ronment. Indeed this is the very reason that the guidance document refers us to the RSR stan- B. \U PDIK NE STATE\UPD0007.H '\.A.Fltness•Hankins Dapo.doe �(QQOGt. eQ�, ►�.G, Creating the RlghtSolutions Together Mr. John King Page 4 September 7, 2004 dards in the first place and states, "We expect municipal officials and site developers to consider our input...". It should also be noted by the South Windsor Commissions that the RSR provides 5 broad categories of criteria for comparison including. surface water protection, pollutant mobility, volatilization, and direct exposure. However, the applicant has chosen to ignore fully 80% of the RSR in their submissions. As such, the only reasonable professional standard of care with re- spect to this site and the public trust is full and good faith compliance with the 1999 guidance, which is fundamentally absent in this case. Since the 1999 guidance has not been complied to date, I would strongly urge the various South Windsor Town Commissions to exercise more oversight on this development project. That over- sight should include a requirement for full public disclosure of sampling results, reports, and preparation of specific pesticide impacted soil management plans. Those management plans should include specific means and methods for monitoring, tracking and documenting impacted soil handling practices in complete conformance with the 1999 guidance. I also urge the Town of South Windsor to engage an independent, qualified environmental professional to ensure that the best professional practices with respect to pesticide contamination are implemented. Lastly, I would advise the various commissions that, in total and complete absence of plans and specifications to manage and track polluted soils at this site, there can be no meaningful or measurable way of ensuring that impacted materials are not: moved off site, placed in the riparian buffer zones, subjected to erosion and transport to sensitive receptors, or will not leach and de- grade local ground water quality. Human health impact aside, the fact that pesticides are known to be leachable and above RSR values at this site strongly indicates that environmental damage is foreseeable. As we have previously indicated to this Commission for example, the RSR sur- face water protection standard for dieldrin is 0.1 parts perbillion. This very low value denotes the extreme toxicity of this compound to surface water receptors (e.g. streams and wetlands). The mass movement of impacted materials about this site will mobilize pesticides in a way that his- torical tilling of the fields would not have. Industry standard practices for avoiding these noted consequences are readily available and in use at numerous construction projects across the state. As such, it is my professional opinion that not employing them at this site likely creates a condition in South Windsor where unreasonable pollution, impairment or destruction of the public trust in the air, water or other natural recourses of the state will occur. Please do not hesitate to call me at (860) 793-6899 with and question or concerns_ Thank you for the opportunity to be of continued service. Sincerely, jHRP A 61AT��P, ile troject DDT/db wba NE S TATEWPD0007.1r kLA.Fness-Hankins Depo.doc H" �cn�Aey, Creating the Right Solutions Together v 23 Fuss&O'Neill Inc. Consulting Engineers 146 Hartford Road,Manchester,CT 06040-5992 TES 860 646.2469 FAX 860 533-5143 INTERNET.www.fussandoneill.com Other Offices: West Springfield,Massachusetts September 9,2004 Trumbull,Connecticut Providence,Rhode Island Columbia,South Carolina Greenville,North Carolina RFC Charles Ray, Esq. �- /V pd McCarter&English LLP SEP Cityplace I 9 2044 185 Asylum Street ,"Lq"oouth W,. Hartford, CT 06103 c° nds "sER,4 "Qsgor "COMMSSIp" Re: Response to HRP Comment Letter of September 7,2004 L. A. Fitness Center South Windsor IWCC Application#04-38P Dear Attorney Ray: The purpose of this letter is to respond to comments made by HRP Associates, Inc. in a letter dated September 7, 2004 ("HRP Letter). This letter discusses issues related to residual pesticides in the soil at the L.A. Fitness Center site. Presence of Residual Total Pesticides in Shallow Soil As part of pre-acquisition due diligence activities conducted in 2000, Fuss & O'Neill performed a Phase I environmental site assessment of a 230-acre parcel known then as the "Catholic Cemeteries Site". This site included the L.A. Fitness Center site, known as Unit 10. The Phase I described the historical use of the area for tobacco -farming and indicated the potential for the presence of residual pesticides in the shallow soil. To assess whether pesticides were present in the soil, Fuss & O'Neill collected several soil samples across the Catholic Cemeteries property in June 2000. Results of samples collected in the vicinity of the L.A. Fitness site were submitted to the IWCC by Fuss & O'Neill on August 19, 2004. Those results, indicated that the concentrations of organochlorine pesticides in the soil samples collected from the shallow soil in the vicinity of the L.A. Fitness site all meet the residential Direct Exposure Criteria for pesticides established by the Department of Environmental Protection(DEP). While these criteria do not specifically apply to this site; the DEP. recommends that these criteria be used as guidelines when evaluating potential health risks. Compliance with the residential Direct Exposure Criteria indicates that this soil does not pose an unacceptable risk to human health, even in a residential setting using conservative exposure assumptions. Based on these findings, we have G AP2000\481%l OWARTFOR I.DOC ' . VIP 'TDOFuss&O'Neill Inc. Consulting Engineers Charles Ray, Esq. September 9,2004 Page 2 indicated to the developer that this soil can be used on-site and that no special handling provisions are required, assuming that the soil is not used as wetland fill. Soils in Other Locations The HRP Letter also attempts to address certain matters respecting soils management on other areas of the Evergreen Walk site. While we are confident that these materials are being managed consistent with applicable law, this material is neither controlled by this applicant nor is the material located within the area of the pending application; therefore, we are unable to comment -further about this material on behalf of this applicant. Nonetheless, on behalf of this applicant, we affirm that, any soils from the area subject to this application which may be placed in any area regulated by the Inland Wetlands Commission or in the riparian buffer will be consistent with the Connecticut Remediation Standard Criteria. In conclusion, it is our opinion that the recommended approach to soil management is protective of human health and consistent with DEP's guidelines and regional approach to addressing the presence of residual pesticides in this area of South Windsor. Sincerely, , Robert S. Pottert Jr.,LEP,CPG o Senior Vice President GAP2000W811,1041ARTFORLDOC f' RE 7 O CE'l ��r#tord Road,Manchester,CT 06040-5992 FllSS&O'Neill Inc. Consulting Engineers TEL 86o 646-2469 FAX 86o 533-5143 SEP — 9 IT:www.fussandoneill.com Other 0 ice�g� September 9, 2004 INtSED W T w,n�y— Spring i ED CONSER ATON�a O,Connecticut Marcia A. Banach AICP �1�►{th Ca Ir n s9n� 004 Columbia, Director of Planning Greenville,�o h Carolina Town of South Windsor INLgNO WETLANDS AGindsor ENCy CONSERVATION COMMISSION 1540 Sullivan Avenue South Windsor, CT 06074 Re: L.A. Fitness Center at Evergreen Walk—PZC Application#04-38P Response to Comments Dated September 3, 2004 Dear Ms. Banach: We are in receipt of Mr. Jeffrey Doolittle's comments (attached) dated September 3, 2004 for the above referenced project. On behalf of the applicant, Evergreen Walk, LLC ("the applicant") we offer the following responses (Mr. Doolittle's comments are in italics and our response follows each comment): 1. Revise the section of Cedar Avenue on Sheet CI.5.3 to show precast concrete curb. The Cedar Avenue section on Sheet CI.5.3 has been revised to show concrete curb. 2. Remove the detail for chain link fence on sheet CT 5.3 if it is not needed. The detail for chain link fence is not needed and has been removed. 3. There may be a conflict between the traffic signal equipment and the sidewalks where Cedar Avenue intersects with Buckland Road. Show all traffic control equipment including span poles, the traffic controller cabinet. and other features of the traffic signal at the driveway entrance onto Buckland Road. Check and modify the plans as necessary so there are no conflicts with traffic signal equipment, sidewalks, guardrails, etc. Also show the easement for the traffic control equipment. The sidewalks ramps need to be designed and built to ADA standards. The traffic control equipment including span poles, traffic controller cabinet, sidewalks, etc are shown on Revised Sheet CS.1.1. The sidewalk ramps will be built in accordance with ADA standards. 4. Provide a gravel access drive off the road to access the sedimentation chamber behind the guard rail. GAP2000\481\L10\response to Doolittle comments dated September 3,2004.doc Corres.(HQ) 0 Fuss&O'Neill Inc. Consulting Engineers Marcia A.Banach,AICP September 9,2004 Page 2 A gravel access to the vortechnics unit has been added to the revised plans. 5. Calculations for the sizing of the Vortechnics unit need to be submitted for review and approval prior to construction. Sizing calculations and shop drawings-for the vortechnics unit will be submitted to Mr. Doolittle for approval prior to construction. 6. The bituminous walk along Evergreen Way needs to be changed to Portland Cement like all the other sidewalks on site. As discussed at the September 7, 2004 Planning and Zoning Public Hearing for this project, the sidewalk along Evergreen Way is temporary. Once a final location is in place, the bituminous sidewalk will be replaced with a portland cement concrete sidewalk. Town staff has agreed that the situation can remain temporary for a maximum of five years. 7. Evergreen Way is superelevated to the south of the proposed building. This needs to be revised so the southern portion is crowned(from about elevation contour 131 to 133) because the direction of superelevation is against the horizontal curve of the drive. The grading of Evergreen Way to the south of the proposed building from elevation 131 to 133 has been changed to show a crown in the road. 8. There is a significant erosion problem in the drainage ditch to the south of the proposed outlet swale. Mitigating measures need to be included to repair. and stop this erosion at Evergreen Way and to the west. We have added two sheets to the revised plans, Sheet CM.1.1 —Intermittent Stream Bank Stabilization Plan and Sheet CM.5.1 —Intermittent Stream Bank Stabilization Details, to address erosion in the drainage ditch. 9. Use the Town of South Windsor detail for the sanitary sewer manhole frame and cover. The Town of South Windsor detail for the sanitary sewer manhole frame and cover has been added to the revised plans. G:\P2000\481\I.10\response to Doolittle comments dated September 3,2004.doc Corres.(HQ) frioFuss&O'Neill Inc. Consulting Engineers Marcia A.Banach,AICP September 9,2004 Page 3 10. Revise the Buckland Road Widening Typical Section on sheet C1.5.2 to show the sidewalk 4 feet minimum from the edge of the road. It is not possible to have a minimum of 4 feet from the edge of road to sidewalk along Buckland Road due to the topography and width of the right- of-way. r 11. I will contact the Engineer with any other drainage comments. No response necessary. 12. An application must be made to the WPCA for this site plan. An application has been made to the WPCA for this site plan. Attached are 8 sets of revised plans, latest revision date September 8, 2004, that incorporate the above responses. Please do not hesitate to contact me at 646-2469 ext. 5269 if you have any questions or need additional information. Sincerely, Michelle Carlson,P.E. Associate Attachment c: Alan Lamson—FLB Architecture John Mallin, Esq. —McCarter English GAP2000\481TIOVesponse to Doolittle comments dated September 3,2004.doc Corres.(HQ) n Y/_J_/J - dt.,- c � 7%Ydr/`7 EK-It� mmmummi- 2 Technology Park Drive ENSR International Westford,MA 01886 11 Phelps Way/PO Box 506 (978)589-3000 Willington,CT 06279 FAX(978)589-3035 (860)429-5323 www.ensr.com FAX(860)429-5378 September 14, 2004 John King, Esquire Updike, Kelly and Speilacy, P.C. One State Street P.O. Box 231277 Hartford, CT 06123-1277 Re: L.A. Fitness at Evergreen Walk, 151 Buckland Road, South Windsor, CT Updated Review of Proposed Grading and Storm Water Management Design Dear Attorney King: As requested, ENSR has conducted an updated review of the project plans and associated documents filed with the South Windsor Inland Wetlands, Watercourses and Conservation (IWWC) application for the above-referenced project. This updated review is based on plans prepared by the project proponent and revised through September 8, 2004. It appears that the substantive changes that are relevant to ENSR's review of these plans since the August 18, 2004 revision include the addition of Drawing CM 1.1, Intermittent Stream Bank Stabilization Plan, and Drawing CM 5.1, Intermittent Stream Bank Stabilization Details. ENSR is not aware of any updated calculations or drainage report submitted in connection with the revised drawings. Our review has continued to focus on the proposed grading of the site relative to wetland resource areas identified on the site plans, the proposed management of storm water runoff from the site, and the hydrologic impacts on wetlands and watercourses located near the proposed fitness center. We offer the following update of comments presented in our letter of August 30, 2004: 1. The project proposes to collect stormwater runoff and discharge it to a roughly 200-foot long created swale that runs parallel to the proposed access road connecting the LA Fitness site to the vicinity of The Shops at Evergreen Walk. The swale would discharge runoff from the LA Fitness site to an existing intermittent watercourse located to the south of the property, and west of a proposed culvert under the proposed access road connector. This drainage course is part of the wetland/watercourse system designated as Wetlands 2 and Wetland 3 (as shown on the "Proposed Riparian Buffer" plan). As noted in our previous comments, this option of stormwater conveyance diverts runoff from the existing site of the fitness center away from its natural outlet, and directs this runoff to a different watercourse. We reaffirm our original comment that other options would appear to be available that would result in less long-term disturbance to the proposed receiving watercourse, even given the stabilization ENSR International Review of LA Fitness at Evergreen Walk, South Windsor CT September 14, 2004 Page 2 measures now proposed. Such alternative options would also better maintain the hydrology of the watercourse and associated wetlands that receive the runoff under existing conditions. 2. Under current conditions, the area proposed for development by this application drains overland due west to a wetland/watercourse indicated as Wetland 3A on the "Proposed Riparian Buffer"drawing (07/10/03) that was prepared in connection with the filing for The Shops at Evergreen Walk. This outlet comprises a different headwater watercourse than the one to which drainage will be directed. The proposed stormwater drainage plan shows a swale that diverts the drainage to the southwest to the wetland/watercourse system designated as Wetland 2and Wetland 3. The proposed swale provides for no opportunity to control the peak rate of runoff from the site. The effects of this drainage alteration on the watercourses and wetlands should be evaluated. These effects not only include effects such as exacerbated erosion of the new receiving water course (at Wetlands 2 and 3) that the newly proposed mitigation measures purport to address, but also the effects of the loss of surface and groundwater hydrologic inputs to Wetland 3A. 3. As listed in the drainage report for the application, there are notable increases in peak discharges from the "project site". For example, 10-year storm discharges are shown to roughly double (from 12.68 cfs to 24.27 cfs). However, these figures do not present a clear picture of how the L.A. Fitness drainage impacts flows in the watercourse that threads through Wetlands 2 and 3. The "project site" as described in the calculations includes sub-watersheds that do not currently discharge into the receiving watercourse, and does not include other sub-watersheds that do contribute to the watercourse. Therefore, the proponent has presented insufficient information to develop an understanding of the impact of LA Fitness on this channel. The drainage calculations presented with the LA Fitness application do not document the existing flows in this watercourse, which appears to receive runoff from Buckland Road and other contributing areas. As noted above, much of the proposed increase in runoff will be generated from an area that does not currently drain to the affected watercourse. The drainage report does not indicate how the flows in the watercourse will be changed by this diversion of runoff. At the last IWWC meeting on this project, the IWWC requested that data be provided that compares the runoff rates from the LA Fitness site to the rates that currently are conveyed through the watercourse from upstream watershed areas. To our knowledge, this data has not been provided. Understanding the existing flows and the causes of the current erosional problems should be part of the analysis; providing peak rate control at the discharge point under Buckland Road should be considered if warranted. ENSR International Review of LA Fitness at Evergreen Walk, South Windsor CT September 14, 2004 Page 3 Pre- and post-development analyses of the peak flow rates in the receiving watercourse should be provided to assess impacts. These calculations should correctly account for watersheds contributing to the channel. If stabilization measures are to be provided, these pre- and post-development analyses are needed to serve as the basis of design for stabilization of the channel. 4. The applicant proposes to correct existing erosion in the receiving watercourse (through Wetland 2 and 3), and offset the impacts of the increased discharges from the L.A. Fitness drainage system, by the use of a series of stabilization measures, including riprap, gabion structural treatments, and coconut fiber logs and matting. These measures are depicted in the new drawings referenced above. The following comments apply: a. ENSR received no copies of calculations that would document that the proposed measures provide for the capacity of the re-engineered stream to carry the increased design flows. b. ENSR received no copies of calculations that would document that the re- engineered stream would also be stable under the proposed design flows. A channel of the correct size can still be problematic if the natural or synthetic lining cannot withstand the energies associated with expected flows. Information should be provided that shows that the embankments as treated can sustain energies of the increased flows without failing, resulting in erosion. Furthermore, information is needed to show that the remaining stream bottom, which is not proposed to be armored or otherwise treated, would also remain stable. c. The proposed coconut logs and matting should be used together with appropriate vegetation when applied as an erosion control treatment. These coconut fiber materials have an extended life compared to conventional biodegradable erosion control measures, but they do degrade over time. Planting of appropriate vegetation is an important part of the design, and is required to establish a root structure that will persist after the coconut fiber matrix has decayed. No plantings are shown on the mitigation drawings. Note that the proposed work for the installation of the erosion control measures will likely result in the removal of plant cover (including wooded cover) that currently aids in streambank stabilization as well as providing other habitat value. Removing this vegetation and replacing it with structural controls and no vegetation should be permitted only after thorough hydraulic evaluation and consideration of alternatives. d. The gabions for embankment treatment are proposed to be set approximately one foot below existing grade. This is likely to require some disturbance of the existing channel bottom. The drawings do not show how this disturbed surface will be re-stabilized. e. The existing channel bed will be prone to continued erosion. Absent an analysis of the stability of the natural channel bed, we would anticipate r • , EM Ott ENSR International Review of LA Fitness at Evergreen. Walk, South Windsor, CT September 14, 2004 Page 4 that the erosion resulting form the substantial increase in flows could be severe. The erosion could scour the channel bed sufficiently to undercut the proposed stabilization measures, resulting in their failure. f. Increasing the volume, flows, and frequency of bankfull discharges in the channel results in corresponding increases at the outlet of this channel, beyond which no treatments are shown. Scouring at the outlet end of the protected channel and in downstream areas could still occur. If there is scour at the outlet end of the channel, such scour could undercut the end of the protective works where they meet the untreated channel. It is possible that a "head-cutting" channel could result, which could destabilize the re-engineered channel starting at the outlet and progressing upstream. g. The performance of the 12 foot wide by 6-foot high gabion weir needs to be evaluated. If it acts as a weir, impounding water in the upstream channel, water overtopping the weir can result in significant scour immediately downstream of the weir, causing erosion and possible undermining of the weir and adjacent channel treatment. No scour protection is shown on the drawings downstream of the weir. 5. As we stated previously, to ENSR's knowledge, there has been no requirement for environmental monitoring on the site to assess impacts of this type. At a minimum, construction-phase monitoring of suspended sediment/turbidity levels in the Plum Gulley Brook upstream and downstream of the site would be a useful barometer of impacts. 6. While the drainage information provides projected flow changes in Plum Gulley Brook downstream of this development site, as ENSR has previously commented, the modeling used for that larger watershed analysis has not been made available for review by us. Our previous comments on this modeling therefore continue to apply. 7. Rain gardens are indicated on the plans, but there does not appear to be any information documenting that they have been sized and distributed to be effective, particularly with respect to providing infiltration that would sustain the groundwater hydrology of the wetlands down-slope of the site. 8. The lack of an overall plan for the entire Evergreen Walk site that addresses the management of groundwater and surface water in a manner that sustains wetland hydrology continues to concern us. The introduction of extensive areas of impervious surface such as with the LA Fitness proposal, the Shops at Evergreen Walk, and similar development proposals, without sufficient mitigation of the impacts on groundwater flows, is likely to result in significant changes in the hydrology of the wetland systems bordering Plum Gulley Brook. The change in groundwater regime coupled with the changes in surface water discharge patterns, volumes, and bankfull flow frequencies constitute changes in hydrology o • k ENSR International Review of LA Fitness at Evergreen Walk, South Windsor, CT September 14, 2004 Page S of the Plum Gulley Brook that can result in long term changes to the geomorphology of the stream itself. These changes can result in a loss of the natural functions of the wetlands and watercourses. As we have recommended previously, a more comprehensive consideration of the stormwater runoff from each sub-watershed under the full development program is in order to avoid the effects of piecemeal development without master drainage planning. The applicant's engineer conceded at the last meeting that the proposed swale is expected to be a temporary feature, perhaps to modified/replaced under subsequent filings; this piecemeal approach is not conducive to comprehensive drainage design. As we discussed in our previous review, ENSR still recommends that an alternative method of stormwater management be considered for this phase of site development. A stormwater detention basin, designed to maximize infiltration and attenuate peak discharges, located in the open field portion of the site immediately adjacent to the proposed development area, and discharging to Wetland 3A, would appear to be a preferred alternative, addressing virtually all the issues we have raised in our review. It would have less potential for sediment/erosion control issues during construction, provide localized peak rate control and improved water quality treatment, and better maintain the existing hydrologic regime of the down-slope wetland systems. Such a stormwater basin could discharge at the vicinity of the existing drainage pipe that serves Buckland Road (conceivably, such a basin could be established from the proposed sedimentation basin and discharge to this existing culvert) to minimize additional impacts to wetland areas. It remains our opinion that this would be a prudent and feasible alternative to the currently proposed plan and would reduce impacts to wetland/watercourse and buffer areas. Please contact me with any questions regarding these comments. Sincerely, ENSR La� rzl�/" Dennis Lowry Senior Program Manager/Ecologist LEGEND: SS-05 + SOIL SAMPLE LOCATION UNIT 8 fJ I UNIT 9 / f SS-06 + r"f SS-02 UNIT 13 t + + t SS-01 SS- 0 UNIT 4 + ° 1 N /Fm- Cv U (V UNIT 12 j i,2C9 j UNIT 11 +03 O� UNIT 5 N Q J 1 w UNIT 10 SS-11 SS-04 + _ BtT�RI4FI6"RbA:D MAP REFERENCE: t{' MAP DERIVED FROM TOWN 0 SOUT , WINDSOR ASSESSOR'S MAP ff�i SCALE HORZ:i"m 6W SOIL SAMPLING LOCATIONS PROD.No.:2000428L10 VERT.: DATE:JULY 2004 DATUM: FUSS&ONEILL INC.c°n Ming Eaginzers NORTH SIDE EVERGREEN WALK HORZ: ' 146 HART-FORD ROAD,MANCHESTER,CONNECTICUT 06040 F VERT.: 860,646.2469 °pmo '°° 600 FIGURE 1 GRAPHIC SCALE w .FandO.com SOUTH WINDSOR CONNECTICUT Fuss&O'Neill Inc. Pesticide Screening Results South Windsor,Connecticut Samples Collected June 22,2000 Parameter Units SS-01 SS-02 SS-03 SS-03 SS-04 SS-06 SS-10 SS-11 SS-11 INDUSTRIAL/COMM'L RESIDENTIAL Sample Depth inches 0-4 0-4 0-4 12-18 0-4 0-4 0-4 0-4 - _18 DIRECT EXPOSURE DIRECT EXPOSURE F80 Sample ID 223000622 -01 -02 -03 -16 -04 -06 -10 -11 24 CRITERIA CRITERIA VOLATILE ORGANIC COMPOUNDS 8260 u NO NO NO - NO ND ND ND - Varies Varies CHLORINATED PESTICIDES 8081 4,4'-DOD ug/kg NO NO NO 24 4,4'-,DOE ug/k 36 240 NO NO NO NOO NO NO N NO 17,000 2,800 4,4'-DDT u 55 NO 61 N NO 1p0 0 - ,000 1, 00 DIELDRIN ug/k 37 NO 29 ND O 17.000 1,800 ENDOSULFAN SULFATE ug/kg ND ND 46 - NO NO NO NO 360 38 1,200.000 410,000 CHLORINATED HERBICIDES 8150) ug/kg NO NO NO - NO NO NO NO Varies Varies ORGANOPHOSPOROUS PESTICIDES 8140 ug/kg NO NO NO - ND NO ND ND Varies Varies TOTAL METALS ARSENIC' mog 7.92 2.89 11.3 7.79 5.82 3.35 3.61 15.7 1. 99 10 COPPER 10 35.8 10.1 69.4 20.0 9.98 48.9 120 76.000 2,500 LEAD mglk 9.81 12.4 10.8 - 13.8 15.9 11.5 22.6 ZINC - 1,000 Spp m 27.2 27.3 28.9 35.9 30.7 27.9 31.0 - 610.000 20,000 NTE • 1. Units-ug=micrograms;mg=milligrams;kg kilograms 2..NO=Not detected 3..-=Sample not analyzed for this parameter. 4. NS=No standard. G:%P2000W81V1 OWI 1\PestSumm_RRK072704.xls EVERGREEN WALK—IWA/CC C.C�mf t o INTERVENTION FINDINGS 1. Is the developer's conduct, as proposed in this application, reasonably likely to cause the unreasonable pollution, impairment or destruction of the public trust in the air, water or other natural resources of the State,based upon the record as a whole? a. reasonably likely—more than a mere assertion of harm;more than"it might"or"it is possible" b. unreasonable—fails to meet requirements of statutes and regulations regulating pollution in the air, water or other natural resources of the State Sample Motion Move that this Agency find that,based upon the record before us as a whole, the developer's conduct, as proposed in this application, is (or is not)reasonably likely to cause the unreasonable pollution, impairment, or destruction of the public trust in the air, water or other natural resources of the State. 2. If negative,nothing further. If positive, Is there a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare? Sam de Motion Move that this Agency find that,based upon the record before us as a whole, there is(or is not) a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare and that said feasible and prudent alternative is t I Proposed motion to approve: Motion to approve(ppl. # 02-59P regarding Expo Design Center said approval being based upon: 1. Compliance with the regulations of the South Windsor Inland Wetlands Agency/Conservation Commission; and 2. A consideration of the statutory factors contained in C.G.S. Section 22a- 41; and 3. A finding that no prudent and feasible alternatives exist to the proposed application; said approval to be subject to the following conditions: [Standard conditions] Seconded at this point. Additional conditions: Move to amend the motion to include the following conditions: - The raingardens shall be constructed with the supervision and installation approved by Dr. Clausen. - Bonds to be set in the amount of$20,000 for installation and maintenance of erosion controls, and $50,000 for the installation and establishment of stormwater structures. The stormwater bond to be held for three growing seasons. - Perinittee shall establish a system to monitor and report on the effectiveness of the stormwater system. At a minimum, the monitoring shall determine the effectiveness of the raingardens, the swale, and the detention basin. Parameters to be monitored shall include, but no be limited to: the effectiveness of infiltration, peak flow control, removal of suspended solids, removal of petroleum hydrocarbons, removal of metals, and the accumulation and transport of metals and hydrocarbons in the soil.. The monitoring program shall start at approximately at the time that the business opens. A soil baseline shall be taken at this time. A preliminary report shall be issued_after one_(l)-no monitoring and a final report after three (3) years of monitoring. Y r "oWN sf,< RECEIVED OCT — 12004 1540 SULLIVAN AVENUE• SOUTH WINDSOR, CT 06074 McCarter&English OR CO�� TELEPHONE (860) 644-2511 September 30, 2004 Certified#70020460000197443746 FLB Architecture& Planning, Inc. 19 Silver Lane East Hartford, CT 06118 RE: Appl.#04-3813—LA Fitness, 151 Buckland Road Dear Mr. Lamson: At the September 15, 2004 regular meeting, the Inland Wetlands Agency/Conservation Commission approved application#04-38P—LA Fitness— 151 Buckland Road— Inland Wetland/Conservation Commission application for regulated activities in connection with the construction of an approximately 45,000 sq. ft. commercial building including parking lots, stormwater structures and associated site improvements on property located westerly of Buckland Road, southerly of Deming Street and northerly of Smith Street. This approval is subject to the following conditions: 1• One blueprint copy of the entire set of plans and this letter reproduced thereon, must be submitted to this Commission. This must be completed within 65 days of approval prior to any construction activity on the site. Plans submitted to Planning &Zoning Commission shall be considered having met this requirement. 2. The application shall indemnify and hold harmless the Town of South Windsor against any liability, which might result from the proposed operation or use. 3. The permit is valid for five years and shall expire on September 30, 2009. It is the landowner(s)/applicant(s)responsibility to track expiration dates and notify the Commission of a renewal request at least 65 days prior to expiration. 4. All approvals required must be obtained and submitted prior to any activity on the site. 5. A contact person shall be identified on the plans. 6. Post construction evaluation period and stabilization of the channel be done for a three- year period to ensure the success and provide any modification necessary. 7• We recommend a bond in the amount of$12,500 be submitted to the Planning &Zoning Commission to ensure compliance with the erosion and sediment control measures. SUMMONS - CIVIL SUPERIOR COU T . ,_ "x"ONE OF THE Except family Actions) FOLLOWING ID-CV-1 Rev. 11-96 Amount, legal interest or C.G.S.51-346,51-347,51-349,51-350,52-45a S property in demand, exclusive 52-48,52-259,P.B.Sec.49,63,66 wti 4- t=,(a,a_ )A al of interest and costs is: INSTRUCTIONS less than $2,500 1,Prepare on typewriter,sign original summons(top sheet)and conform copies of the summons(sheets 2,3 and 4). $2,500 through $14,999.99 2.If there are more than two defendants,prepare or photocopy conformed summons for each additional defendant. $1 5,000 or more 3.Attach the original summons to the original complaint,and attach a copy of the summons to each copy of the c ("X"if applicable) complaint. Also,if there are more than 2 plaintiffs or 4 defendants prepare form JD-CV-2 and attach it to the original Claiming other relief In and all copies of the complaint. addition to or in lieu of 4.After service has been made by officer,file original paper;and officer's return with the clerk of court. money Or damages. 5.The party recognized to pay costs must appear personally before the authority taking the recognizance. 6.Do not use this form for actions in which an attachment,garnishment or replevy is being sought. See Practice Book Section 49 for other exceptions. TO:Any proper officer; BY AUTHORITY OF THE STATE OF CONNECTICUT, you are RETURN DATE hereby commanded to make due and legal service of this Summons and attached Com taint I November 23,20034 IXI JUDICIAL DISTRICT AT(Town in which writ is returnable)(C.G.S.51-346,51-349) CASE TYPE(From case type list-see back) HOUSING SESSION ❑ GA NO. I HARTFORD I Major A Minor 66 ADDRESS OF COURT CLERK WHERE WRIT AND OTHER PAPERS SHALL BE FILED(C.G.S.51-347,51-350) TELEPHONE NUMBER 95 Washin ton Street Hartford CT06106 860)548-2700 PARTIES NAME AND ADDRESS OF EACH PARTY NOTE: Individual's Names Pq Form JD-CV2 PTY No., street, town and z code Last, First, Middle Initial attached NO FIRST NAMED c/o General CirowthManagement, hic., 01 PLAINTIFF 110 North Wacker Drive Chicago, Illinois 60906 Additional HCTS S LLC, c/o enera rowt anagement, Inc., Northac er rive, 02 Plaintiff Chica o Illinois 60606 FIRST NAMED South Winds'or Inland Wetlands Agency/Conservation Commission, 1540 Sullivan 50 DEFENDANT Avenue South Windsor CT 0607T Additional South Windsor Inland Wet ands AgencyyConservation Commission c o own er 51 Defendant Town of South Windsor Town Hall 1540 Sullivan Avenue South Windsor CT 06074 Additional Evergreen Walk, Main Street, Manchester, 52 Defendant Additional The Honorable Acting Commissioner ofEnvironniental Protection, 79 Elm 53 Defendant Street Hartford CT 06106-5127 NOTICE TO- IDANT 1. You are being sued. 6. The"Appearance"form may be obtained at the above 2. This paper is a Summons in a lawsuit. Court address. 3. The Complaint attached to these papers states the claims 7. If you believe that you have insurance that may cover the that each Plaintiff is making against you in this lawsuit. claim that is being made against you in this lawsuit,you 4. To respond to this Summons,or to be informed of further should immediately take the Summons and Complaint to proceedings,you or your attorney must file a form called your insurance representative. an"Appearance" with the Clerk of the above-named Court 8. If you have questions about the Summons and Complaint, at the above Court address on or before the second day you should consult an attorney promptly. The Clerk of after the above Return Date. Court is not permitted to give advice on legal questions. 5. If you or your attorney do not file a written" pearan " form on time,a judgment may b en et1 against you y default. DATE SIGNED S d'X"proper box) Comm.of Superior Court TYPE NAME OF PERSON SIGNING AT LEFT. October 6 ' 2004 ❑Assistant Clerk JOI3N C.KING,ESQ. FOR THE PLAINTIF WASP, ENTE HE APPEARANCE OF: NAME AND ADDRESS OF ATTORNEY,L FIRM TIFF IF PRO SE(No.,street,town and zip code) TELEPHONE NO. JURIS NO.(If ally or law firm) UPDIKE,KELLY&SPELLACY,P.C. ONA S E'STREET RTFORD CT 860/548-2600 65040 NAME AND RESIDENCE OF PERSON RECOGNIZED T PR UTE IN THE AMOUN OF$250(No.street,town and zip) SIGNATURE OF PLAINTIFF IF PRO SE DENEEN SEIFEL 10 NOJA T I ANTON CT 6019 #PLFS. I #DEFS. I #CNTS. I SIGNED(O i g recognizance;'k"prgperbox) Comm.of Superior Court For Court se On/ 2 2 1 Assistant Clerk FILE DATE IF THIS SUMMONS IS SIGNED BY A R a. The signing has been done so tha PI ti )will nit be denied access to the court. i b. It is the responsibility of the Plain Iff to see that s r Ice is made in the manner �' a provided by law. c. The Clerk is not permitted to give any legal advice in connection with any lawsuit. WAL-_ "„ d. The Clerk signing this Summons at the request of the Plaintiff(s) is not responsible in any -01'r..;, 0;-; i 0R way for any errors or omissions in the Summons,any allegations contained in the Ar!D . i, !N ?1= ;"rr PrDhSvf Complaint, or the service thereof. I hereby certify I have SIGNED(Pro Se Plaintiff tr DATE SIGNED DOCKET O. read and understand the `mot=n�:� above: �IQNI YY�CRvt�Q ;, o c c M 4�In!Cv M+ssroN CIVIL,SUMMONS STATE OF CONNECTICUT CONTINUATION OF PARTIES SUPERIOR COURT JD-CV-AL Rely.8-94 FIRST NAMED PLAINTIFF(Last,First,Middle Initial) Pavilions at Buckland Hills L.L.C. FIRST NAMED DEFENDANT(Last,First,Middle Initial) South Windsor Inland Wetlands Agency/Conservation Commission NAME(Last,First,Middle Initial,if individual) ADDRESS No.,Street, Town and ZIP Code CODE 03 04 05 06 07 08 09 10 11 12 13 NAME Last, First,Middle Initial,if individual) ADDRESS No.,Street, Town and ZIP Code CODE 54 The Honorable Jane Stahl, Acting Commissioner of Environmental Protection, c/o Richard 55 Blumenthal, Attorney General, 55 Elm Street, Hartford, CT 06106 56 57 58 59 60 FOR COURT USE ONLY-FILE DATE 61 62 63 DOCKET NO. CIVIL SUMMONS-Continuation >i• RETURN DATE: NOVEMBER 16, 2004 SUPERIOR COURT WAYNE C. GERLT J.D. OF HARTFORD VS. AT HARTFORD SOUTH WINDSOR INLAND WETLANDS AGENCY/ CONSERVATION COMMISSION, ET AL OCTOBER 4, 2004 APPEAL FROM THE TOWN SOUTH WINDSOR INLAND WETLANDS AGENCY/ CONSERVATION COMMISSION, ET AL To the Superior Court for the Judicial District of Hartford at Hartford on October 4, 2004 comes Wayne C. Gerlt appealing from a decision of the Town of South Windsor Inland Wetlands Agency/Conservation Commission and complains and says: 1. The Defendant, Evergreen Walk, LLC of Virginia Beach, Virginia, is the owner of property consisting of 232 acres on the west side of Buckland Road in the town of South Windsor, Connecticut. 2. The Defendant, Evergreen Walk, LLC filed an application with the Defendant, South Windsor Inland Wetlands Agency/Conservation Commission, herein after Agency, for approval for Defendant Evergreen Walk, LLC on its property consisting of 232 acres on the west side of Buckland Road in the town of South Windsor, Connecticut to construct a commercial building, parking lots, stormwater structures, and other associated site improvements known as "LA Fitness." " - PAUL W. SMITH • ATTORNEY AT LAW 36 MAIN STREET • P.O. BOX 338 • WINDSOR LOCKS, CT 06096 TELEPHONE (860) 627-0513 • TELECOPIER (860) 623-1026 • JURIS No. 102195 it - f 3. The Defendant Agency approved the application of the Defendant Evergreen Walk, LLC at its meeting on September 15, 2004 and notice of such decision was published on September 21, 2004. 4. The Plaintiff is aggrieved by the decision of the Defendant Agency's approval of the application in that the Plaintiff owns property at 112 Deming Street, South Windsor, Connecticut, which is the plaintiffs business property, and which property abuts the property of the Defendant Evergreen Walk, LLC involved in the subject approval of the Defendant IAgency and the property of the Plaintiff is within 90 feet of wetlands which are the subject of the Agency's decision. 5. The Plaintiff is aggrieved by the decision of the Defendant Agency in that approval of the application would allow the Defendant, Evergreen Walk at Buckland Hills, to construct a large commercial building,g, parking lots and drainage structures on said land. Said plan of development will adversely affect the Plaintiffs property by creating objectionable noise, vibration, dust, traffic and pollution and adversely effect the environment, water quality, I wetlands and wetlands ecosystems. The proposed activities will adversely affect the quality of land, air and water on the Plaintiffs property. The Plaintiffs right to use and enjoy his property will be adversely effected by the Defendants Agency's decision in this matter. PAUL W. SMITH • ATTORNEY AT LAW 36 MAIN STREET • P.O. BOX 338 • WINDSOR LOCKS, CT 06096 TELEPHONE (860) 627-0513 • TELECOPIER (860) 623-1026 • JURIS NO. 102195 i i i i i i i I 1 I i i 6. The approval by the Defendant Agency of the application constitutes an illegal j approval as defined by the South Windsor Wetlands Regulations and by state law and/or the approval of the application by the Defendant Agency exceeds the Defendant Agency's authority under the South Windsor Wetlands Regulations and state law. 7. In approving the application, the Defendant Agency acted illegally, arbitrarily and abused its discretion vested in that: i a. The Defendant Evergreen Walk plan approval failed to conform to the South Windsor Wetlands Regulations and state law. b. The Defendant Agency improperlyinte re interpreted the Wetlands Regulations of the Town of South Windsor. c. The Defendant Agency exceeded its statutory and regulatory authority in I approving the plan. d. The Defendant Agency failed to publish adequate and proper notice of the hearings on the subject application and failed to publish adequate and proper notice of the Defendant Agency's decision of approval. e. The Defendant Agency failed to provide adequate and proper notice to abutting municipalities as required by law. PAUL W. SMITH • ATTORNEY AT LAW 36 MAIN STREET • P.O. BOX 338 • WINDSOR LOCKS, CT 06096 TELEPHONE (860) 627-0513 • TELECOPIER (860) 623-1026 • JURIS NO. 102195 �i I f f. The Defendant Agency approved the application without receiving the necessary reports and information from other boards and commissions and such information from the applicant as required by law. g. The Approval will likely and unreasonably pollute, impair and impact the wetlands. h. The procedures set forth in the South Windsor Wetlands Regulations, the notices of the hearing and approval, the hearings, and the approval of the application are an illegal, improper, vague and arbitrary exercise of the Defendant Agency's power and jurisdiction under state law. Wherefore, the Plaintiff appeals the decision of the Defendant Agency and pray that the court sustains his appeal and that the decision of the Defendant Agency is declared null and void. Dated at Windsor Locks, Connecticut this 4Ih day of October, 2004. THE PLAINT - ay Gerlt BY• Paul W. Smith His Attorney WALT SABLE PAUL W. SMITH • ATTORNEY AT LAW 36 MAIN STREET • P.O. BOX 338 • WINDSOR LOCKS, CT 06096 TELEPHONE (860) 627-0513 • TELECOPIER (860)623-1026 • JURIS NO. 102195 i i I i I I I I Please enter the Appearance of. i Paul W. Smith, Esq. I 36 Main Street P.O. Box 338 Windsor Locks, CT 06096 Juris No. 102195, I For the Plaintif c r/ Paul Smit I i I i I A T �t WALTEF�f. Tot,/, PAUL W. SMITH • ATTORNEY AT LAW 36 MAIN STREET • P.O. BOX 338 • WINDSOR LOCKS, CT 06096 TELEPHONE (860) 627-0513 • TELECOPIER (860) 623-1026 • JURIS NO. 102195 i ! I RETURN DATE: NOVEMBER 16, 2004 SUPERIOR COURT WAYNE C. GERLT, ET AL J.D. OF HARTFORD VS. AT HARTFORD SOUTH WINDSOR INLAND WETLANDS AGENCY/ CONSERVATION COMMISSION, ET AL OCTOBER 4, 2004 RECOGNIZANCE WITH SURETY You, Wayne C. Gerlt of 2620 Ellington Road, South Windsor, Connecticut, as principal, and Margot Thompson of 112 Deming Road, South Windsor, Connecticut, as surety, acknowledge yourself and severally bound to the South Windsor Inland Wetlands Agency / Conservation Commission of the Town of South Windsor, and to Evergreen Walk, LLC, Defendants in this action, in a recognizance of$500.00 that the Plaintiff in action shall prosecute to effect the appeal which it has taken against the South Windsor Inlands Wetlands Agency / Conservation Commission of the Town of South Windsor and Evergreen Walk, LLC brought to the Superior Court for the Judicial District of Hartford at Hartford on October 4, 2004, and that the Plaintiff shall comply with the orders and decree of this Court, and shall pay any costs for which judgment may be rendered against them in such case. Taken and acknowledged at Windsor Locks, Connecticut on e th d y of October, 2004, before me, a Commissioner of the Superior Court. Paul W mi Commissioner of the perior Court A �C: I"ll1LT�-.�kit TOW,,, � jlf IS'tfCC)i,C STAB {- II`:!')SrR LE PEP,S61V PAUL W. SMITH • ATTORNEY AT LAW 36 MAIN STREET • P.O. BOX 338 • WINDSOR LOCKS, CT 06096 TELEPHONE (860) 627-0513 • TELECOPIER (860) 623-1026 • JURIS NO. 102195 i CITATION TO THE SHERIFF OF THE COUNTY OF HARTFORD OR HIS DEPUTY WITHIN SAID COUNTY, GREETINGS: BY AUTHORITY OF THE STATE OF CONNECTICUT, you are hereby j commanded to summon the South Windsor Inlands Wetlands Agency/Conservation i Commission of 1540 Sullivan Avenue, South Windsor, CT of the Town of South Windsor in the County of Hartford and State of Connecticut, and Evergreen Walk, LLC of 1109 Rose Lane, Virginia Beach, VA 23451 to appear before the Superior Court in and for the Judicial District of Hartford at 95 Washington Street, Hartford, Connecticut onNov.16, 2004 said appearance to be made by the South Windsor Agency, Evergreen Walk, LLC or their attorneys by, entering a written statement of appearance with the Clerk of said Court on or before the second day following the return day, then and there to answer unto the foregoing complaint and appeal of Wayne C. Gerlt of 2620 Ellington Road, South Windsor, Connecticut by leaving with or at the usual place of abode of the Chairman or Secretary of the South Windsor Inland Wetlands Agency/Conservation Commission, and with the Town Clerk of the Town of South Windsor and with the Commissioner of the Department of Environmental Protection for the State of Connecticut, and with Evergreen Walk, LLC in the manner required by statute, a true and attested copy of the complaint and appeal and this citation and summons at least twelve days before the return day, in the manner provided by law for the service of civil process. I hereby certify that I have personal knowledge of the finan ial responsibility of the plaintiff and deem it sufficient to pay the cost of this action. Hereof fail not, but of this writ with your doings thereon,, a e du er 'ce and return. Dated at Windsor Locks, Connecticut this 41h day o f, r, 04. f� aul W. S it issioner of the Su erior ourt .E y T, , WA t .:U �NI ,.� S. CONS TABLE TO,f N OF Ou 'I 1 I. SOR AND N IND FF /vl�PERSO ERrr,IT Fi=FtSON PAUL W. SMITH • ATTORNEY AT LAW 36 MAIN STREET • P.O. BOX 338 • WINDSOR LOCKS, CT 06096 TELEPHONE (860) 627-0513 • TELECOPIER (860) 623-1026 • JURIS No. 102195 II y� V' Q z RETURN DATE: NOVEMBER 23, 2004 SUPERIOR COURT PAVILIONS AT BUCKLAND HILLS L.L.C. and o HCTSS, LLC 00 G`° JUDICIAL DISTRICT OF APPELLANTS HARTFORD o V. AT HARTFORD w • SOUTH WINDSOR INLAND WETLANDS AGENCY/CONSERVATION COMMISSION and EVERGREEN WALK, LLC00 ; a CD APPELLEES OCTOBER 6, 2004 C ; SUMMONS AND CITATION U) N To Any Proper Officer: M N x o By authority of the State of Connecticut you are hereby commanded to summon: x � a South Windsor Inland Wetlands Agency/ and c/o Town Clerk Conservation Commission Town of South Windsor Town Hall Town Hall 1540 Sullivan Avenue 1540 Sullivan Avenue South Windsor, Connecticut 06074 South Windsor, Connecticut 06074 And N oEvergreen Walk, LLC �4 c/o Laurence P. Rubinow, Agent for Service 555 Main Street Manchester, Connecticut 06040 v ;; And Cd a 0 374857 f 2 s ♦i 1 0 0 114 z The Honorable Jane Stahl and c/o Richard Blumenthal Acting Commissioner of Attorney General • Environmental Protection 55 Elm Street 0 0 79 Elm Street Hartford, Connecticut 06106 06 Hartford, Connecticut 06106-5127 LO o to appear before the Superior Court in and for the Judicial District of Hartford on Tuesday,November w 23, 2004, the appearance not to be in person but to be made by the respective Appellee or its attorney by 0 Cqfiling a written statement of appearance with the clerk of the court whose address is 95 Washington v Street, Hartford, Connecticut 06106 on or before the second day following the return date then and there to answer unto the foregoing appeal of Pavilions at Buckland Hills L.L.C. and HCTSS, LLC by serving a Cqtrue and attested copy of the Appeal and Bond and Recognizance and this Summons and Citation in the N x (.0 manner provided for the service of civil process on: 1) Elizabeth Warren, Chairperson of the South b Windsor Inland Wetlands Agency/Conservation Commission at 494 Abbey Road, South Windsor, U Connecticut 06074-1610 and the Town Clerk of the Town of South Windsor; 2) Jane Stahl, Acting 0 x Commissioner of Environmental Protection, and Richard Blumenthal, Attorney General; and 3) Evergreen Walk, LLC in care of Laurence P. Rubinow, agent for service. N CO N O 0. N N N a+ C 0 374857 0 LO to Hereof fail not, but of this writ with your doings thereon make due service and return. z -�, Dated at Hartford, Connecticut, October 6, 2004. 00 to N 00 / JOHN , ESQ. w Commis ' ne o the 'fiperior Court 0 N c0 d' UCD n: u H cC • Cq N m N O N � U a U C U b 0 x ti N i N 0 W LT (� F N C O 114117 0 0 L z RETURN DATE: NOVEMBER 23, 2004 SUPERIOR COURT PAVILIONS AT BUCKLAND HILLS L.L.C. and o HCTSS, LLC co JUDICIAL DISTRICT OF co 00 APPELLANTS HARTFORD LO o 00 V. AT HARTFORD w • SOUTH WINDSOR INLAND WETLANDS AGENCY/CONSERVATION COMMISSION and o EVERGREEN WALK, LLC ; a CD APPELLEES OCTOBER 6, 2004 �H ro BOND AND RECOGNIZANCE N 4S ~ co N x o Know all men by these presents that Appellants Pavilions at Buckland Hills L.L.C. and HCTSS LLC, as principals, and Deneen Seifel, of 10 Noja Trail, Canton, Connecticut 06019, as surety, are b holden and stand firmly bound and obliged,jointly and severally, unto the South Windsor Inland 0 Wetlands Agency/Conservation Commission, and Evergreen Walk, LLC in the penal sum of$750.00; to NN which payment we do bind ourselves, our successors, heirs, executors and administrators, firmly by co N these presents. m The condition of this obligation is such that whereas the above-bound principals have appealed from a Final Decision of the South Windsor Inland Wetlands Agency/Conservation Commission, dated 0 374857 r 2 O z September 15, 2004, regarding a permit application of Evergreen Walk, LLC to conduct regulated 0 activities to the Superior Court for the Judicial District of Hartford; CD CD 00 Now therefore, if the principals shall prosecute this appeal to effect, comply with the orders and to to decrees of the court and shall pay all costs in case it fails to sustain such appeal, then this bond shall be w void, otherwise to remain in full force. 0 0 N Dated at Hartford, Connecticut, October 6, 2004. 00 'r LO U � N I, John C. King, the subscribing authority,hereby certify that I have personal knowledge as to the Cd . N financial responsibility of the principals and recognize it as sufficient to prosecute this appeal to effect at N x o and comply with the orders and decrees of this court. - U Q. C O U o Jo g,Esq N co N O m ci LT N C O 374857 3 0 d� 0 6 z I, Deneen Seifel, do hereby agree to act as surety for the obligations of the principals in the amount 0 of$750.00 to prosecute this appeal and comply with the orders and decrees of this court. 00 N 00 A • Deneen Seifel 0 0 N 00 It LO U (D �H Cd a • � C cc , �M xi O P, y O U 'v 0 N M N O Qa Q a a G O � `c' DIAL 1r G"r' 374857 O O h O z RETURN DATE: NOVEMBER 23, 2004 SUPERIOR COURT PAVILIONS AT BUCKLAND HILLS L.L.C. and o HCTSS, LLC 00 ( JUDICIAL DISTRICT OF 00 APPELLANTS HARTFORD o V. AT HARTFORD w SOUTH WINDSOR INLAND WETLANDS 0 AGENCY/CONSERVATION COMMISSION and N EVERGREEN WALK, LLC 0 L ci CD APPELLEES OCTOBER 6, 2004 U E- cd • a APPEAL FROM THE FINAL DECISION RENDERED BY m THE SOUTH WINDSOR INLAND WETLANDS AGENCY/CONSERVATION COMMISSION N To the Superior Court in and for the Judicial District of Hartford to be held on November 23, a U 0 2004 come Pavilions at Buckland Hills L.L.C. and HCTSS, LLC appealing pursuant to Connecticut U o General Statutes ("Conn. Gen. Stat.") §§ 22a-43 and 8-8 from the September 15, 2004 decision to issue a permit to conduct regulated activities (the "Final Decision") rendered by the South Windsor Water N Inland Wetlands Agency/Conservation Commission in a matter entitled Application# 04-38P—LA N O Fitness at Evergreen Walk Evergreen Walk LLC 151 Buckland Road Gateway Development Zone 0 a • South Windsor, Connecticut. Through the Final Decision, the South Windsor Water Inland Wetlands b Agency/Conservation Commission approved the application of Evergreen Walk, LLC to construct a 0 374857 0 2 0 0 LO z large fitness center and accompanying improvements known as LA Fitness at Evergreen Walk within a regulated area in South Windsor. This proposal is part of the larger proposed development of Evergreen 00 CD 00 Walk, which would encompass more than one million square feet of commercial and retail space in 0 o South Windsor. w 0 N PARTIES AND NATURE OF APPEAL 00 LO a 1. The Appellant, Pavilions at Buckland Hills L.L.C. ("Pavilions'), is a Connecticut limited liability Cd H company, with its principal office in care of General Growth Management, Inc., 110 North Wacker 0Cq— Drive, Chicago, Illinois 60606. Pavilions is a party to the Final Decision by virtue of its filing of its C6 � C9 to Verified Petition to Intervene pursuant to Conn. Gen. Stat. § 22a-19 on or about July 2, 2004, and its x � having been acknowledged and/or granted by the Commission on or about July 7, 2004 in the matter U entitled Application# 04-38P—LA Fitness at Evergreen Walk Evergreen Walk, LLC, 151 Buckland b 0 Road, Gateway Development Zone South Windsor Connecticut. 2. The Appellant, HCTSS, LLC ("HCTSS"), is a Delaware limited liability company, with its N c oprincipal office in care of General Growth Management, Inc., 110 North Wacker Drive, Chicago, Illinois ° 60606. HCTSS owns certain land together with buildings and improvements located thereon commonly a a known as 260 Smith Street, South Windsor, Connecticut, which abuts any portion of land within, or is 0 374857 3 0 �r 0 L 0 0 z x within a radius of ninety feet of, the wetland or watercourse involved in the Final Decision. HCTSS is o therefore aggrieved pursuant to Conn. Gen. Stat. § 22a-43(a), and has standing to bring this appeal. 00 0 3. The Appellee, the South Windsor Inland Wetlands Agency/Conservation Commission(the 0 o LO "Commission'), is a municipal agency established by the Town of South Windsor under Conn. Gen. w Stat. § 22a-36 et seq. The Commission issued the Final Decision from which Pavilions appeals. 0 0 0 CO 4. The Appellee, Evergreen Walk, LLC ("Evergreen") is a Connecticut limited liability company a (0 with a principal office located at 555 Main Street, Manchester, Connecticut 06040, and is the owner of H the land which is the subject of the Final Decision and is the current or former owner of property, of Cq a� old which such land is a part, consisting of approximately 235 contiguous acres of land on the west side of N x o Buckland Road in South Windsor, Connecticut which was declared by Evergreen as a planned L4 U community(and/or which is subject to inclusion in the future in such planned community)by an instrument captioned"Declaration of Evergreen Walk Planned Community"dated on or about 0 November 20, 2003 and recorded in the South Windsor Land Records in Volume 1555 at Page 1 (the "Declaration"). Evergreen is a party to the Final Decision as the applicant in the matter entitled N_ CO o Application# 04-38P—LA Fitness at Evergreen Walk Evergreen Walk LLC 151 Buckland Road as Gateway Development Zone South Windsor Connecticut. a 0 374857 4 a 0 LO a 0 z c 5. Pavilions and HCTSS bring this appeal from the Final Decision in the matter entitled Application o # 04-38P—LA Fitness at Evergreen Walk Evergreen Walk LLC 151 Buckland Road GatewU CO C 00 Development Zone South Windsor Connecticut pursuant to Conn. Gen. Stat. §§ 22a-43 and 8-8. 0 CO G w . FACTUAL AND PROCEDURAL BACKGROUND 0 0 0 00 6. Evergreen proposes to construct an approximately 45,000-square-foot fitness center, 310 parking CO spaces, access roads, walkways, stormwater structures, and associated improvements known as LA Fitness at Evergreen Walk on a site described in the application as consisting of 85.65 acres located at N 151 Buckland Road, South Windsor, with the principal portions of the construction occurring on land M x o defined in the Declaration as "Unit 10." v � x � v 7. According to Evergreen's application, wetlands comprise approximately 5.84%of the proposed 0 b 85.65-acre site, or approximately five acres. The proposed development will require the direct O disturbance of 480 square feet of wetlands, the placement of 110 cubic yards of fill in wetlands, and the disturbance of one acre of upland review area, and extensive disturbance and construction within eighty N_ CO feet of wetlands. m 8. The proposed construction of LA Fitness at Evergreen Walk is an integral part of the larger proposed development of retail and commercial space named Evergreen Walk on a site of approximately U Cd U 0 374857 5 0 �r 0 C CD z 235 acres. Evergreen and its successors in interest as the owner(s) of Unit 10 will enjoy the benefits of and be subject to the burdens of various easements and servitudes granted,reserved, or otherwise created 00 Ob by the Declaration. Evergreen and its successors in interest as the declarant of the planned community LO o will enjoy further rights known as special declarant rights entitling it to alter the designations of various w components of the common interest community defined as common elements, the use of which is 0 0 wrelevant to the regulations of inland wetlands including, inter alia, those areas designated as the LO a "Wetland Mitigation Areas," "Detention Basins," and"Riparian Buffers Areas." 9. Under Section 1.3 of the Inland Wetlands, Watercourses, and Conservation Regulations of the a.Cq � Town of South Windsor(the"Regulations'), the Commission is authorized to grant, grant with x o conditions, or deny permits "for all uses and activities on inland wetlands and watercourses; and the development, conservation, supervision, and regulation of natural resources within the Town of South Windsor." 0 10. On or about June 2, 2004, Evergreen submitted an application to request written approval of the Commission to conduct regulated activities in order to construct LA Fitness at Evergreen Walk and N co orelated improvements. w 11. The application and accompanying materials submitted by Evergreen describe and depict a regulated activity within the meaning of Section 2.LU. of the Regulations in the form of the placement m 0 374857 6 0 0 0 LO 6 z co of fill and building materials within wetlands and other regulated areas as defined in Section 2.1.U. of o the Regulations. 00 00 12. Evergreen's application involved "conduct which has, or which is reasonably likely to have, the 0 w effect of unreasonably polluting, impairing or destroying the public trust in the air,water or other natural w resources of the state." Conn. Gen. Stat. § 22a-19. Pavilions filed a Verified Petition to Intervene as a 0 0 0 Nparty pursuant to Conn. Gen. Stat. § 22a-19 on or about July 2, 2004. LO ci CD 13. At a regularly scheduled public hearing and meeting on or about July 7, 2004, the Commission a: °0 acknowledged and/or g granted the Verified Petition to Intervene of Pavilions. N 4 14. The Commission held public hearings on the Evergreen's application on July 7, 2004, July 21, �co N x o 2004, September 1, 2004, and September 15, 2004. U 15. On September 15, 2004, the Commission voted to issue the Final Decision, and, on September b 21, 2004, published notice of the Final Decision. 0 16. Pavilions and HCTSS are aggrieved and accordingly appeal to this Court for relief pursuant to Conn. Gen. Stat. §§ 22a-43 and 8-8. N_ co N O a a v b a� 0 374857 7 0 �r 0 LO c0 d 11 STATUTORY FRAMEWORK 17. Conn. Gen. Stat. § 22a-43 provides that any person who is aggrieved by a decision of a CO 00 municipality pursuant to Conn. Gen. Stat. §§ 22a-36 to 22a-45, inclusive, may appeal to the superior L 0 court for the judicial district where the land affected is located. Such appeal must be commenced within w the time specified in Conn. Gen. Stat. § 8-8(b). 0 0 � 18. Conn. Gen. Stat. § 8-8(b)provides that any person ag 00 grieved by any decision of a municipal board LO amay take an appeal to the superior court for the judicial district in which the municipality is located. ... . Cd Such person must commence the appeal within fifteen days from the date that notice of the decision of N the agency was published. 16 ~ CO x o 19. Conn. Gen. Stat. § 8-8(a)provides that an"aggrieved person"is any person owning land that abuts Q or is within a radius of 100 feet of any portion of the land involved in the Final Decision. U ti 0 FINAL DECISION AND GROUNDS FOR APPEAL 20. Pavilions and HCTSS are aggrieved by the administrative procedures, findings, inferences, N N conclusions, and Final Decision including, but not limited to, the following: w 0 a a) Evergreen's application was incomplete because it failed to address all environmental tissues raised by the proposal, including, inter alia, the scope and extent of impacts on 0 374857 8 0 to 0 6 z CO wetlands and watercourses, and the cumulative impacts of a sequence of planned activities on affected wetlands and watercourses; 00 CO ccb) The Commission failed to address all environmental issues raised by Evergreen's proposal, 0 including, inter alia, the scope and extent of impacts on wetlands and watercourses and the cumulative impacts of a sequence of planned activities on affected wetlands and 0 (0 N watercourses; 00 to v CD c) Evergreen failed to present the cumulative impacts of a sequence of planned activities on H affected wetlands and watercourses, contrary to Conn. Gen. Stat. § 22a-41(a)(3), (4), and C (6), and of Sections 11.2.C., 11.2.D., and 11.2.F. of the Regulations; Ch N x (0 d) The Commission failed to consider the cumulative impacts of a sequence of planned x � activities on affected wetlands and watercourses, contrary to Conn. Gen. Stat. § 22a- U 41(a)(3), (4), and(6), and of Sections 11.2.C., 11.2.D., and 11.2.F. of the Regulations; b 0 e) The Commission acted illegally, arbitrarily, and abused the discretion vested in it in that the N Commission was predisposed to approve and/or prejudge related regulated activity that was CO 0 not presented in the application and not considered by the Commission in its approval of as the application, and was predisposed to approve and/or prejudge the application; U y �1 M 0 374857 9 0 0 0 0 Z W f) At its September 15, 2004 hearing, the Commission severely restricted the time allowed for o Pavilions' presentation to the Commission concerning the proposal before closing the CO CO 00 public hearing the same evening, and prevented Pavilions a fair opportunity to submit L 0 o evidence and question the applicant, to whom the Commission provided significant time and opportunity during prior hearings to present its evidence. Such limitation prevented CO 0 00 Pavilions from exercising its rights as a party intervenor under Conn. Gen. Stat § 22a-19, LO aand prejudiced Pavilions. In addition, such limitation evinces a clear predisposition by the Commission to approve Evergreen's application; a� Cq g) The Commission based its approval of Evergreen's application on inadequate bases, in that �C6 N o it accepted and/or adopted the testimony of Evergreen's expert witnesses regarding the x � impacts on wetlands and the on-site pesticide contamination without inquiring of the b underlying scientific or technical bases of the experts' testimony; 0 h) The Commission failed to consider the extent; concentration, and potential impact on wetlands and watercourses of documented,historic pesticide contamination,which the N .r ca Nproposed construction activities will unearth, displace, mobilize, and discharge, contrary to Sections 9.4.C, 11.2.A and 11.2.E of the Regulations; V Cd IY V/ Q� O 374857 10 LO 0 0 0 z i) Evergreen failed to demonstrate the absence of a feasible and prudent alternative to its o proposal, including, inter alia, the alternate design or siting of the project and C N CO accompanying improvements to minimize the impact on wetlands; 0 j) The Commission failed to state on the record a finding that there exists no feasible and w prudent alternative to Evergreen's proposal, as required by Conn. Gen. Stat. § 22a-41(b)(1) 0 0 0 00 and Section 11.3 of the Regulations, and failed to consider, inter alia, the alternate design or siting of the project and accompanying improvements to minimize the impact on Cd wetlands; a� ca Cq k) The Commission approved Evergreen's proposal, despite the fact that it is reasonably likely �M N x o to cause the unreasonable pollution, in that it violates the requirements of statutes � U regulating pollution of, inter alia, the air, water, or other natural resources of the state; 0 U 1) The Commission found, erroneously and contrary to the substantial evidence in the record, 7 0 that the development of LA Fitness at Evergreen Walk as proposed did not present a N reasonable probability of unreasonable pollution under the Connecticut Environmental M o Protection Act; and w m) As a consequence of its erroneous finding, the Commission did not require Evergreen Walk to rebut Pavilions's prima facie case of unreasonable pollution. U Y n M O 374857 11 0 �r 0 to (0 d z 21. Substantial rights of Pavilions and HCTSS have been prejudiced because the Final Decision and o the administrative procedures, findings, inferences, and conclusions related thereto are: CO CO a) In violation of constitutional or statutory provisions; 0 o b) In excess of the statutory authority of the Commission; w c) Made upon unlawful procedure; 0 0 (0 N d) Affected by other errors of law; C6 L e) Clearly erroneous in view of the reliable,probative and substantial evidence of the whole tiH record; and � N Cj f) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted tM N o exercise of discretion. U U O U ti 0 N_ Ce) N O 0.1 d a a a� a� U) a� 0 374857 12 0 0 0 6 z o WHEREFORE, the Appellants, Pavilions at Buckland Hills L.L.C. and HCTSS, LLC, hereby appeal w Cbfrom the Final Decision and pray this Court for the relief set forth in the Statement of Remedies Sought. 0 co Respectfully submitted, Pavilions at Buckland Hills L.L.C. and o HCTSS, LLC w N 00 W lC') ate° By; J /Seet, ES Cd a� Updik KS ellacy,P.C. Cl One S aP.O. Box 231277 >,N Hartford, Connecticut 06213-1277 o (860) 548-2600 U LSD y Please enter the appearance of Updike, Kelly& Spellacy, P.C. Juris No. 65040 860-548-26 co N { X JOB1,11 ESQ. w 0 a O 374857 O d' O 10 co z RETURN DATE: NOVEMBER 23, 2004 SUPERIOR COURT PAVILIONS AT BUCKLAND HILLS L.L.C. and o HCTSS, LLC 0 C0 N JUDICIAL DISTRICT OF co It APPELLANTSLO HARTFORD co 00 V• AT HARTFORD w • SOUTH WINDSOR INLAND WETLANDS CD AGENCY/CONSERVATION COMMISSION and o EVERGREEN WALK, LLC APPELLEES OCTOBER 6, 2004 ti E� STATEMENT OF RE N MEDIES SOUGHT KJ �ht A —>,N The Appellants in the above-captioned action, Pavilions at Buckland Hills L.L.C. and HCTSS, LLC, � ~ xo as pray that this Court will: av w ] 1. Review the September 15, 2004 Final Decision of the South Windsor Inland Wetlands c� o Agency/Conservation Commission in the matter entitled Application# 04-38P—LA Fitness at I x Evergreen Walk Evergreen Walk LLC 151 Buckland Road Gateway Development Zone South NWindsor, Connecticut; a 2. Render judgment sustaining this appeal; 0 a 3. Vacate and set aside the Final Decision; and 4. Grant such legal or equitable relief as the Court may deem necessary appropriate. Y �'or r 0 374857 I ' -14- LO �r 0 0 z 17) Respectfully submitted, Pavilions at Buckland Hills L.L.C. and 0 HCTSS, LLC 00 9 0 w B / Y• l 0 q0nete--2—re6et G, Er. N "pella cy, P.C. 00 Hartford, CT 06123-1277 (860) 548-2600 Cd v E• C • N a� U) N 00 C" �N N xi O U �U O U b 0 N Cq N O 9 .3 TF � iJ tV O 374857