Old Lyme gravel pit operation raises more questions for officials

It remains an open question whether bringing in off-site material for on-site processing represents an expansion of existing activity, according to the zoning enforcement officer.

— Zoning officials this week signaled their interest in keeping a close eye on a Mile Creek Road gravel pit operation currently being scrutinized by their counterparts responsible for overseeing inland wetlands and watercourses.

Members at the Monday meeting wanted to know if the zoning permit for 308 Mile Creek Road would come before them when it expires on May 15, or if Zoning Enforcement Officer (ZEO) Eric Knapp would have the discretion to approve it administratively as a routine function that doesn’t rise to the level of commission oversight.

But Knapp said numerous questions remain about what kind of activity has been allowed on the site in the past, what kind of activity can be allowed going forward, and who is in charge of making the determination.

Ron Swaney, who has identified himself as the owner of 308-1 and 304 Mile Creek Road, is under an order from the Inland Wetlands and Watercourses Commission “to cease all activities” within 100 feet of the Three Mile River and any inland wetlands on the property.

The zoning permit governing the site, which was renewed in 2022, requires authorization from the Inland Wetlands and Watercourses Commission for any expanded activity within 100 feet of wetlands, according to notations on the permit.

Swaney’s zoning permit, signed by then-Zoning Enforcement Officer Dan Bourret, includes the same stipulations that have been renewed every two years for decades.

The zoning permit exempts the site from most of the provisions in the town’s zoning regulations governing gravel pit activity. The commercial venture is allowed on the residential

property because it was being used that way before zoning regulations were updated in 1988.

Knapp said he believes the site is the only remaining gravel pit in town that was in operation back then.

The zoning approval for a “excavation and removal/ deposit operation” on a specified area within the property remains in effect, and a condition of the the cease and desist order from the wetlands agency allows him to continue to bring equipment into and out of the site.

Members of the Zoning Commission alleged, and Knapp agreed, that Swaney has been trucking outside material into his property to be processed on site before being hauled back out again.

Mike Miller, a member of the Zoning Commission and inland wetlands commission, said the practice represents a deviation from the activity authorized in the permit.

“So it’s not really being used as a sand and gravel pit anymore,” he said. “It’s really being used as a site to crush other items and then ship them out.”

Knapp said the owner intends to start using the site as a gravel pit again “in the near future.” But it remains an open question whether bringing in off-site material for on-site processing represents an expansion of existing activity, according to the zoning enforcement officer.

“And the question then becomes when did he start doing that, and how many ZEOs have signed off on that previously,” he said. “And is that (activity) now incorporated into his permit because previous ZEOs have signed off allowing him to do that?”

Knapp replaced Bourret in 2022 when Bourret left to take the role of development planner in Portland.

Bourret, reached at his Portland office Tuesday, said he knew off-site material was being processed on the property when he signed the renewal.

He said Swaney’s attorney, Peter Alter, provided documentation showing the site had been used for that purpose since before the zoning regulations were updated.

“This was a grandfathered use, and it was a use they claimed they still used,” Bourret said.

A June 2022 memo from Bourret to Alter acknowledged as much.

“In addition to excavation of earth products and removal, screening and crushing of earth products is also conducted on the site as part of the ongoing legally existing use,” Bourret wrote.

So that’s another question, according to Knapp: Has Bourret, by signing the permit renewal, “essentially created a right”?

He said he’d ask the commission’s attorney, Matthew Willis, to weigh in.

But Knapp reiterated there’s one fact that’s not in question: The zoning permit cannot be renewed in May without the inland wetlands agency approving its own permit first.

The cease and desist order was issued after the agency found Swaney had cleared trees along Four Mile Creek, created a berm with unspecified material along the Three Mile River, and failed to put in place the kind of controls that would keep silt out of interior ponds.

The agency required Swaney to hire an expert to study the unpermitted changes he made and recommend how to fix them. A final report addressing the concerns outlined in the order will be incorporated into a new permit application to do business and conduct site work within 100 feet of the wetlands or watercourses. The application is due no later than the commission’s April meeting.

That’s where attention should be focused right now, according to Knapp.

“If you don’t have wetland approval, I cannot sign a new zoning permit,” he said.