By Tara Fischer

Staff Writer

A Berlin stormwater management code that requires property developers to obtain easements from downstream neighbors to build up a lot could be amended, per a recommendation by the town’s planning commission.

Current municipality standards maintain that if stormwater flows onto an existing property, the new project’s developers are mandated to secure easements from that site’s owner.

According to Sharon Cruz, a civil engineer with firm Davis, Bowen & Friedel, as it stands, Berlin’s rules dictate that, “if a stormwater management plan involves direction of some or all runoff off of the site, it is the responsibility of the developer to obtain from adjacent property owners, any easements or other necessary property interest concerning flowage of water. Approval of a stormwater management plan does not create or affect any right to direct runoff onto adjacent property without the property owner’s permission.”

That rule could now be adjusted. The planning commission’s basis for its recommendation for staff review is that even in the case where development of a property does not create additional runoff, another nearby owner may still deny the required easement and thus halt the new initiative from moving forward.

“I’m fearful as a precedent, a smart investor could just start buying random lots around town and holding future developers hostage,” said Commission Chair Matthew Stoehr.

Stoehr’s fellow committee members agreed.

The topic came up during a project presentation on Wednesday, Sept. 10. The endeavor evaluated at that meeting had been previously reviewed by the Berlin Planning Commission but came before the group again with a minimized version to comply with the stormwater easement code.

Last week, the Berlin Planning Commission reviewed the preliminary plans to subdivide an existing parcel on Bay Street, west of Bottle Branch Road, into four residential lots. Property owner Eric Davis and Jason Lindsey, an engineer with Atlantic Group and Associates, presented the new design.

The project was originally to include several duplexes. Now, the approximately 2.8-acre parcel will be divided into four separate lots: Lot 1, 8,948 square feet; Lot 2, 8,700 square feet; Lot 3, 12,112 square feet; and Lot 4, 92,605 square feet.

Davis said that with the new setup, he could likely get away with building one small duplex. There are also three failing structures on the land, currently located on Lot 1, Lot 3, and Lot 4. The owner added that he may be able to remodel these facilities for some type of use.

The scope of the multi-duplex work was revised and reduced due to the town’s stormwater code, Lindsey said. According to the engineer, the developers were informed that to move forward, they needed to obtain an easement from the nearby Decatur Farms neighborhood to discharge stormwater onto their property.

Lindsey added that his team was able to reduce the 10-year peak discharge rate and match the regulatory standard of a two-year discharge rate. The duplex development would not increase the amount of stormwater Decatur Farms receives, as it would be considered a natural flow. Even with the modified flow rate, Decatur Farms’ eight-person homeowners association board denied the request, ultimately stopping the owner’s original intent for the property in its tracks.

The new plans are allowable without permission from an adjacent property owner, so long as each lot’s development does not exceed 5,000 square feet of disturbance, which the owner and engineers maintain they will not hit with the modified scope of work.

This scaled-down version and parcel subdivision were preliminarily approved by the Berlin Planning Commission last week. The plans will be eligible for final approval once engineering, stormwater, and utility reviews are finalized.

Davis indicated that if the town standard were to be adjusted to allow for his initial duplex design, he would consider revitalizing those efforts. For now, the developer will move forward with the reduced variation.

While this project will likely be amended to comply with the runoff code, the commission has asked that town staff take a look at the guidelines to protect future developments.

“I care about your project, but also the next 50,” Stoer said, addressing Davis.

Cruz said that discussions would begin at the staff level “to evaluate the code for compliance with state regulations, because obviously, any storm water information in your code has to first and foremost comply with the state stormwater regulations.”

She continued, “And then, with the internal discussions, moving forward with, ‘What are the implications of the code as it is written now?’ And are there ways to clarify the code for better information for any potential developers with projects and their engineers?”

No timeline for these conversations was decided last week. The commission has simply requested that they eventually take place.

“A business owner or an HOA, they’re just going to say no,” Stoehr said. “They have almost zero to gain. That’s my concern. That all future developments have this issue hanging over their head.”