Trescott Hill Road land can be farmed, commission says

NORTH CANAAN — More than a year after it began, the Trescott Hill Road wetlands matter was resolved last week, with a consensus by Inland Wetlands Commission (IW) members that the agricultural use there does not need a permit.The 2.5 acre property, which is essentially either wetlands or within the 100-foot setback zone, came under scrutiny when it was cleared of brush to become a horse pasture. Owner Mary Ann Marschat and the Sebben Family, who were leasing the land, were ordered to do no further work until the situation could be sorted out. The question was whether or not they needed a permit for the clearing, stream diversion, road development and watering pad installed along the stream.Adjoining property owner and resident Bernard Re brought the matter to Inland Wetlands, along with statutes and case law and his appeal that work be stopped. At the Inland Wetlands meeting June 28, Re was the only agenda item. A week prior, the parcel’s new leasee, farmer Richard Segalla, plowed the whole site under to plant corn. Re, frustrated that he could get no one to enforce the stop order for work there, lay down in front of Segalla’s tractor. There was a confrontation, the police were called, and Re was charged with trespassing.Farming is ‘as of right’Marschat and her attorney, were in attendance at the meeting June 28. So were members of the Sebben family, but only as observers; they said they have no future plans for the property. Re gave a lengthy statement and presented photos of the property. Commissioners later voted to deny his request to be a legal intervenor, based mainly on their determination that the current use of the property is allowed by regulations.In North Canaan, and across the state, farming in wetlands is considered an “as of right” use. State statute allows that, but it also requires a review by the local Inland Wetlands commission of any proposed new activity. That brings it back to a decision the state Department of Energy and Environmental Development (DEEP) says can be based on local conditions. It allows local land use agencies to weigh the benefits, such as allowing a degree of wetlands impacts if it will create more farmland.It can be a complicated matter, with the law purposely written to be flexible. Town Attorney Judith Dixon was invited to come and give a general lesson and to help the commission come to a determination on this particular case. Dixon referred to a list of allowed agricultural uses in wetlands, including grazing, crops, nurseries and farm ponds of 3 acres or less, but cautioned that any of those activities would require a permit, or at least a review by Inland Wetlands. Much depends on change and the degree of impact to the property. A review will give the commissioners a chance to make sure the wetlands are used in a way that is acceptable.“You can’t just take a wetlands, clear cut it, drain it and start tossing seed around,” Dixon said. “You have to get a permit, and you have the right to say no if that action is going to create too much harm to the wetlands. For instance, you can have grazing in existing wetlands if you don’t touch it, such as bringing in sheep with no clear cutting or road building. Then you don’t need a permit.”Dixon said the Wetlands Act was not intended to ruin existing farming. Basically, if wetlands have already been disturbed, there is no issue. Oversight is required if there is an expansion or new farmland is created.She also said clear cutting refers to timber, not brush, as was the case on Trescott Hill Road. The road in question was already used as a dirt path for off-road vehicles, and so was determined not to be new construction. Reclamation or draining?The commission members and Dixon went on to discuss other legalities, such as granting intervenor status, cease-and-desist orders and enforcement. There remained some confusion as to whether or not there was a cease-and-desist order, possibly because the process was not clearly understood. In at least one prior meeting, members said there was a cease-and-desist order. Commission member Michael O’Connor said a letter was sent asking that the work be stopped and that the property owners and leasees were to come to a meeting. But he said he didn’t believe a cease and desist was ever issued.Dixon said the first step would more likely be a letter requesting activities stop and the parties involved appear before the commission. In the case of very serious destruction or the lack of response from a property owner, Inland Wetlands could seek a court-ordered cease and desist. Moving on to a discussion of enforcement, commission Chairman Gregory Polanski said they would call the state police, but Dixon said the state police do not enforce wetlands regulations. Not discussed at the meeting was Section 13 of the local Inland Wetlands regulations, which deals with enforcement. While it might be construed as pertaining only to properties that have been issued a permit, the first paragraph refers to all “actions or investigations necessary for the enforcement of these regulations.”It goes on to describe a precise process of deadlines for dealing with a “written order,” and it says the order remains in effect until the issuing agency “affirms, changes or withdraws the order.” In a discussion that led to the determination that the new cropland is an “as of right” use, commission member Matthew Freund spoke of his practices as a dairy farmer and in dealing with numerous wetlands areas. He also reiterated that the issue seemed to be more of a neighbor dispute. They talked about the approximately 30 years since the land was last farmed, and discussed whether this is a change of use. Stating they had no application and no cease-and-desist order, commission members consulted with Dixon on how to proceed with Re’s letter and intervenor application. Dixon said they have always been an open board and suggested they allow Re to make his presentation. Re essentially said that while he adamantly supports farming, the small piece of property should be restored as a nature habitat and would not be missed as farmland. He suggested Inland Wetlands is not following its charge to protect the wetlands, and therefore the well-being of residents by seeking to protect farmers rather than the wetlands.