Agency: Proposed tree farm outside its regulatory jurisdiction

East Lyme — The Inland Wetlands Agency ruled Monday that Landmark Development’s plans to harvest and plant trees in the Oswegatchie Hills near the Niantic River and repair two roads for a proposed tree farm there are allowed “as of right” on the property.

Attorney Doug Dubitsky, who is representing Landmark Development Group and Jarvis of Cheshire, both Middletown-based companies under Executive Manager Glenn Russo, said the companies plan to begin harvesting hardwood trees and planting softwood trees on a five-acre section of their roughly 240-acre property and then proceed to other five-acre areas on the site.

The plan is “to selectively harvest the native hardwoods on various sections of the property and plant

in their place, nursery stock and Christmas trees — mostly White Pine — for wholesale, on-site retail, and possibly ‘cut-your-own’ sales,” according to a narrative written by Dubitsky, who is also a state representative.

Two existing farm roads on the property are in poor condition and need to be fixed and improved to allow the tree farming, Dubitsky said.

Dubitsky sought a ruling on behalf of Landmark Development that the proposed farming activities and related road construction are permitted and exempt from the Inland Wetlands Agency’s regulatory jurisdiction.

In a 3-2 vote, with members Harold Clarke and Phyllis Berger opposed, the Inland Wetlands Agency decided that the proposed activities are directly related to the farming operation and are permitted “as of right.” But the agency said that if any activities entail the filling of a wetland or watercourse, Landmark first would need to seek a permit from the agency.

Monday’s vote followed a discussion in which the commission reviewed the state statute that outlines the agricultural uses permitted in wetlands and watercourses “as of right.” Commission members also asked questions on the condition of the existing roads and how specifically the roads would be improved, with some members saying they wanted more information.

Mark Zamarka, an attorney for the town, also had provided written legal guidance that the planned activities are permitted “as of right.” He referenced the town’s inland wetlands and watercourses regulations and recent case law that interpreted state statutes.

Russo said by phone that a forester was hired in 2006 to evaluate the hardwood trees on his Oswegatchie Hills property and develop a forest management plan, with recommendations that he has been following.

Russo said the planned tree farming operation for the Oswegatchie Hills will introduce softwood trees to the property and is an extension of an existing tree farm in Middletown that he owns and runs.

During his presentation on Monday, Dubitsky said the plan is to start the tree farming in areas near the existing farm roads that are relatively level and easy to access. He said specific locations can’t be determined until Landmark accesses the property and begins the tree farming operation.

Dubitsky showed the commission “rough markups” of potential tree farming areas on drawings of the Oswegatchie Hills property that were provided by the town. The drawings show that potential areas for tree farming would be to the east of the proposed affordable-housing units envisioned in Landmark’s latest development application for the hills.

The tree farming operation is unrelated to the application, said Russo.

Appeals related to Landmark’s proposed development of the hills are tied up in court.

Landmark Development is appealing the East Lyme Zoning Commission’s decision in August 2015 to conditionally approve a preliminary site plan and rezoning application for 123 acres in the hills, with 36 acres designated for development and 87 for open space. The case has been assigned before a judge in Hartford Superior Court, but there has been no activity on the case for more than a year, according to Andrew Minikowski, an attorney and legal fellow for Connecticut Fund for the Environment, an intervenor in the case.

Meanwhile, the town is appealing a Hartford Superior Court judge’s ruling related to a Water and Sewer Commission decision that Landmark had appealed.

In May 2015, Russo and First Selectman Mark Nickerson had signed a memorandum of understanding for Landmark Development and the town to work together to try to locate another property to swap for Landmark’s 236 acres in the hills.

Nickerson said the proposed tree farm does not affect those ongoing efforts.

“It doesn’t alter our plans to try to find a better resolution than the development of the Oswegatchie Hills,” Nickerson said by phone. “We’re still going to work together, either to find land to swap, or to acquire the land.”