The Inland Wetlands Agency on Thursday unanimously approved a permit for a 64-unit condominium complex on a former lumber yard at the end of Thorpe Street, rejecting its staff recommendation for denial.

Conservation Administrator Annette Jacobson faced sharp questioning from the board about her report and recommendations on the project, which raised issues like settling of the land, plans for remediating contaminated soil and the types of pilings or foundations that would be used in building the condos.

In making her presentation, Jacobson said the 6.7-acre site is flood prone, and the developer hadn't provided any coordinated plans for remediation and construction to prevent possible contamination of the nearby tidal or inland wetlands.

"Is this even in our jurisdiction?" asked Chairman Stanton Lesser. The property itself contains no inland wetlands, but there is a small portion in the northeast corner that is within the setback for wetlands on adjacent property. There is no regulated activity planned in that setback.

"There will be many eyes on this project," Lesser said.

John Fallon, the lawyer representing 185 Thorpe Street Corp., the developer, contended the board's only role is to decide whether the proposed project would have an adverse impact on the off-site wetlands, and not with the phasing of remediation or construction.

He, and several others, disputed Jacobson's contention that the property floods often. She said her concern is that there would be stockpiles of contaminated soil that could be carried to inland wetlands in the event of flooding during remediation or construction.

Commission member Kevin Gumpper said the base flood data show that there is a 50 percent chance of the property flooding once every 38 years. "How are you getting that to mean it's frequently flooded?" Gumpper said. "It didn't flood during (Tropical Storm) Irene." He said it seemed Jacobson had based her recommendation for denial on the assumption that tidal waters from Pine Creek -- at the opposite end of the property -- would breach the dike, "grab pollutants bringing them completely across the site, and up another 100 feet" into the wetland on the St. Thomas Church property.

"This is not a stretch at all," Jacobson said, and told the commission "all it takes is a heavy rain, not even a tropical storm."

Neighbors confirmed that the property did not flood during Tropical Storm Irene, and Fallon presented photographs of the property following the storm as further proof.

"I still don't see how this impacts this one little area," Lesser said.

Fallon said that, in addition to securing the local wetlands permit, the project also needs permits from the Town Plan and Zoning Commission and two permits from the state Department of Energy and Environmental Protection. He said that additional testing will be done to determine the extent of any contamination when, and if, zoning approval is received.

All structures on the property would be demolished and remediation completed before any construction begins, Fallon said.

Jacobson said Town Engineer Laurie Pulie wanted to submit additional comments on the proposed plan to the wetlands board, and asked that the hearing be kept open, which drew objections from Fallon and was not supported by the board.

Fallon said Pulie's concerns are centered on issues that would be addressed during the zoning hearing. He noted that Pulie had submitted two memos, including one right before she left on vacation, and did not ask that the hearing be continued until she returned.

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