Simsbury, CT - Zoning Board of Appeals Minutes 03/26/2008

ZONING BOARD OF APPEALS

Peter Stempien, Chairman, called the regular meeting of the Simsbury Zoning Board of Appeals to order at 7:30 p.m. in the Main Meeting Room at the Simsbury Town Offices. The following members were present: Thomas Horan, John McCann, Nancy Haase, Katie Martin, and Alternates Edward Cosgrove and Tegan Blackburn. Also present were Lynn Charest, Zoning Compliance Officer, Robert DeCrescenzo, Town Attorney, and other interested parties.

Secretary Tom Horan read the Call.

II. APPOINTMENT OF ALTERNATES

Mr. Horan moved to hear Item IV before hearing Item III. The motion was seconded by Ms. Martin and passed unanimously.

IV. RECEIPT of Opinion Letter from Town Attorney, Robert DeCrescenzo, regarding the Appeal of the Decision of the Town Planner dated December 11, 2007 from Simsbury-Avon Preservation Society, LLC.

Robert DeCrescenzo, Town Attorney, and from the firm of Updike, Kelly & Spellacy was at this meeting to speak on this matter. Attorney DeCrescenzo said that the first question he had been asked was whether or not the appeal was timely filed. He said that the January 9th letter was and that the subsequent February was reduced to the town form, but that fell within the appeal period under the statutes. Attorney DeCrescenzo said that he was asked whether or not this Board had jurisdiction to hear an appeal of the December letter from Hiram Peck. This was looked at very carefully, and in their opinion the Zoning Board of Appeals does not have the jurisdiction to hear the appeal because it is not an order, requirement, or decision appealable under General Statutes 8-7. This Boards jurisdiction to hear appeals derives from General Statute 8-7. Attorney DeCrescenzo said that they had researched two cases in which this issue was addressed. One involves a fact matter that is very similar to what they have here. It is their conclusion, after looking at it very carefully, that the Zoning Board of Appeals does not have jurisdiction to hear the appeal of the December letter from the Town Staff, and without jurisdiction they cannot hold a public hearing. Chairman Stempien said that there is no public hearing scheduled and that is why this was not listed in the Call. As the Town Attorney has said that they cannot hear it, they will not hear it.

Chairman Stempien said that however, as there is an Attorney and also a member of the Association in attendance this evening, he would like to offer them a chance, for the record, to speak at this meeting. Attorney DeCrescenzo advised the Board to procedurally make a motion to that effect as this will give them all their rights to appeal the decision. Mr. Horan made a motion for them to speak, which was seconded by Ms. Martin.

Diane Whitney, Attorney, representing the Simsbury-Avon Preservation Society said that she had received a copy of the cases that Attorney DeCrescenzo based his comments tonight on, and has a difference of opinion on them. Attorney Whitney feels that this Board does have the discretion to decide to hear this appeal, and it is well within their jurisdiction. She said that the primary case that Attorney DeCrescenzo is relying on supports this. Under Connecticut General Statute 8-6 a.1, the Zoning Board of Appeals can hear appeals where an error is alleged on a decision of an official and this is the basis of their claim. Also, the Town's Zoning Regulations, under Article Twelve A.2 says that this Board can hear appeals where it is alleged that there is an error in any decision by a town official charging enforcement of Chapter 124 of the State Statutes or any regulation adopted by the Town's Zoning Commission. She said that they are alleging that Mr. Peck has made an error in deciding that the Gun Club has the appropriate permit to conduct outdoor shooting. Attorney Whitney said that they are looking for the Gun Club to have to submit to the jurisdiction of a Town Board, and have the Board hear them out and judge whether the activity should be permitted at all. If should be permitted, are there any conditions that should be attached to that activity. She said that to the best of their knowledge and research this has happened twice. The Gun Club went before the Town Zoning Commission twice asking for permission to conduct outdoor shooting, and was denied both times. She said that they cannot find any record that they ever received a permit to allow outdoor shooting. They are asking that the Gun Club submit to the jurisdiction to the Town Zoning Commission and that this Commission would then decide whether they could conduct this activity, and if they can if there are any conditions that should be put on it. This is the basis of their request and they feel that the decision of the Town Planner that the Gun Club already such a permit is not correct. It is well within this Board's jurisdiction to hear their appeal from that decision.

Bob Patricelli, owner (and lives on) of Folly Farm, which abuts the Metacon Gun Club, and is a member of the Simsbury-Avon Preservation Society, said that he is not at this meeting to make a legal argument, but thinks it is relevant for this Board to know how long it has been that they have tried for the town to give them an audience on the question of the amount and type of outdoor shooting at this Gun Club. His own involvement began around 2005 and they have had many meetings with Attorney DeCrescenzo and town officials, etc. They tried in 2005/2006 to get a hearing before this Board. They were told that they could not do that, but should go to the Superior Court instead. They went to Superior Court, at considerable expense, and got denied in terms of submitting to the Superior Court because it was said that they had not exhausted their remedies with the town bodies. He said that they came back and filed letters with the town staff making the arguments that Attorney Whitney made. They really think that there has never been a hearing before the Zoning Commission or the Zoning Board of Appeals about the nature of shooting over there on what should be the hours and should there be any controls, etc. Mr. Patricelli said months went by and finally they got a decision that town staff felt that there had been appropriate zoning decisions. He said that he asked town staff what they should now do and was told that they should go before the Zoning Board of Appeals. Now, the Town Attorney is saying that this Board has no jurisdiction and that they have to go back to the Superior Court. They have already been there and this has been going on for 3 ½ years. All they are asking is for the opportunity for one or the other of the Town Boards' to go through the evidence and decide whether the decision of a town staff member is correct or not based on the history. Mr. Patricelli said that it cannot be right that you have to go through the expense of going to court when you disagree with the decision of the Zoning Enforcement Officer. He said that in terms of common sense give them the opportunity to be heard. This has been a very frustrating three to four year battle just trying to get someone's attention so they can have the matter looked at.

Chairman Stempien thanked the speakers and said that is one of the reasons that they went to the Town Attorney to get his opinion. This Board did not want to go ahead and then have some other Board come along and say that they could not hear this. This way, at least, gives the Simsbury-Avon Preservation Society the opportunity to expend their administrative activities so that they could then not be turned down one way or another. He said that if the court then decides that this Board, in fact, should review it, they would be more than glad to do it.

Attorney DeCrescenzo said that he has read the previous decision on this matter. The exhaustion of the administrative remedies applies because at the previous appeal the Board did not take action. To preserve their appeal rights he asks that they raise the motion, vote on it, and that would satisfy that. He said, for the record, that it is his job to make sure that the Board is adequately advised of their legal rights and obligations, but it is equally important that as Town Attorney the tax payers and the public get fair treatment under the rules that apply to all the Boards.

Ms. Martin said that the letter that came from Attorney DeCrescenzo's office was just received by this Board tonight. She said that it would have been nice to have this earlier. Ms. Martin said that they need clarification as to who has jurisdiction. Attorney DeCrescenzo said that the only thing that would bring it to the Zoning Board of Appeals is their jurisdiction to hear appeals of the order, requirement, or decision of the Zoning Enforcement Officer. He said that there is a procedure by which the Simsbury-Avon Preservation Society can have this matter heard. After all these years, it boils down to does the Metacon Gun Club operate their Gun Club with all required zoning approvals'. The Simsbury-Avon Preservation Society says no, and the Metacon Gun Club says yes. The town staff, to date, says yes they have all their approvals. The Simsbury-Avon Preservation Society seeks to challenge that determination.

Ms. Martin asked if it is the jurisdiction of the Gun Club on whether or not they have permits. Could the Zoning Board of Appeals say that you need to follow the permits that you have or is that, in fact, the Zoning Commission. Attorney DeCrescenzo said that this is precisely the problem with hearing this matter before this body and that is why courts have said that you do not have jurisdiction, you are non-action.

Attorney Whitney asked what if the Board decides that the decision of the Zoning Enforcement Officer is not correct, the Gun Club does not have the right permit. Chairman Stempien said that they can say that yes they do not have it, but for that situation they have no authority to order the Zoning Enforcement Officer to do anything because he is an employee of the Zoning Commission. It is his understanding that if they do it as a result of an appeal; they can then become the Zoning Enforcement Officer and enforce the ordinances that exist. Attorney Whitney asked how that is different from what they are asking them to do now. Chairman Stempien said that the letter that was sent to Attorney Whitney from Mr. Peck only relates what had occurred in the past and therefore was not appealable. It was just a statement of what had happened. Attorney Whitney said it was a statement that the Gun Club is operating correctly under the correct permit and we are saying not so. If you were to agree with us, would it not then be a requirement that the Gun Club apply for the correct permit. Chairman Stempien said that if they are acting as the Zoning Enforcement Officer and his function is to require a permit then yes they could on a basis of an appeal. Mr. Patricelli said that he does not care which Board they go before. He does not want to go to court a second time with all the expense involved. Which body do they go to?

Ms. Martin said that she does not feel comfortable with just saying that they should table it. Chairman Stempien said that he is not saying table it, he feels that they should get a higher authority telling them.

Mr. McCann asked if Attorney DeCrescenzo submitted it to them two weeks ago (April 2nd). He said that he usually signs it and emails it. He said that he personally cannot make an assessment of this argument without studying the record in some additional detail. Chairman Stempien said that they have the option of tabling the motion. He said that the motion has been seconded, but has not been voted on yet.

Attorney Whitney said if they do not make a decision tonight, would it help for them to send out a chronology and her argument. Chairman Stempien said it is up to the Board's desire on this aspect of it. He feels that even though it is an expense to them, he would feel much more comfortable having a Judge telling him that this Board hear it and they act in terms of the Zoning Enforcement Officer. He said that what will happen is if the Judge says yes they will hear it, or it will go to court, or they will tell the Zoning Enforcement Officer to act and he will say no. They will still have to go to court to force the Zoning Enforcement Officer to act. Attorney Whitney said that if the Board's decision is to decline jurisdiction then their recourse is to go to court and ask for an injunction. They end up in court either way. Chairman Stempien said that the Judge would then tell this Board how to proceed and then they can proceed correctly.

Attorney DeCrescenzo said that Attorney Whitney is correct. The law suit would be an injunction, but the proper defendant, in their opinion, would not be the Zoning Board of Appeals, it would be the Zoning Commission. He is saying in their letter that this Board does not have jurisdiction as the only basis of jurisdiction is order, requirement or decision of the Zoning Enforcement Officer. This does not qualify. The issue as to whether or not the Gun Club is operating with proper permits is a zoning issue.

Mr. Patricelli said that if they had an opportunity to review Mr. Peck's letter it says that "I find the following". Mr. Patricelli said that this sounds like a decision to him.

Ms. Martin said that part of her question is the letter of July 25th, from Bill Voelker, Director of Community Planning and Development, says that "we believe the Gun Club is working under the correct permits". You then wrote a letter for appeal to Hiram Peck. Then Hiram Peck, Director of Community Planning and Development, wrote back saying we agree with Bill Voelker's letter, agreeing that the Gun Club is working under its permits correctly. Chairman Stempien says that he sees that letter relaying what exactly Mr. Voelker found in the 2002 letter. Attorney Whitney said that they had asked for a new opinion, as the other opinion was so old. In Mr. Peck's new opinion he turned back to the Voelker opinion and said yes they have a valid permit.

Ms. Martin said that she is concerned that even if this Board votes in their favor, they will not get what they want. She thinks this will go back up the ranks and they will still say that they voted against this. Mr. Cosgrove said that it boils down to the Zoning Commission did not do their job. They cannot overturn their decision. Attorney Whitney said that the Zoning Commission has turned the Gun Club down twice for outdoor shooting. Chairman Stempien said that Mr. Peck's letter indicated that they did get a permit to build things that you would not build unless you were shooting, so therefore implied it was granted. He said that they would like to deal with it and give them an answer that they can run with. He would like a Judge behind him telling him yes.

Attorney DeCrescenzo said that they do not want the Superior Court to agree with them and tell the Zoning Board of Appeals to hear it and then have their remedy produce no action, which causes you to go back to Court. Chairman Stempien said that they want a solution to the problem, not evade solutions. Attorney DeCrescenzo said that he does not feel this agency (ZBA) is the proper agency to raise these issues. They are not trying to put up roadblocks and are not taking sides or defending actions. Chairman Stempien said that they did let them speak.

Mr. Patricelli said if the ZBA decides that it does not have jurisdiction, and they somehow file something in Zoning and Zoning then asks the Town Attorney if they have jurisdiction, would he tell them that they do not. Attorney DeCrescenzo said that he cannot answer that off the top of his head.

Mr. Horan said if they table this motion could Attorney DeCrescenzo approach the Zoning Commission and hash this out and say we want them to go to the proper channels. Attorney DeCrescenzo said they cannot insert themselves into the middle of a controversy between two private parties, but he could discuss with Counsel. This has been around for so long, he does not want another round of law suits.

Mr. McCann asked who told them to go before the Zoning Board of Appeals. Attorney Whitney and Mr. Patricelli said Mr. Peck.

Mr. Horan asked if Attorney DeCrescenzo had reviewed the December 11th correspondence before it went out. Attorney DeCrescenzo said Mr. Peck asked him to review correspondence, but not in light of this issue. He said that when he reviews something the Zoning Enforcement Officer does, he does not review it for the subsequent decision, but is looking for something that is blatantly in violation of a provision. It is not up to him to say if it is the right, wrong decision or no decision.

Chairman Stempien said this will not be the only case that will come before this Board. The Board needs clear guidelines to be able follow where there is no question what so ever and everybody knows what the guidelines are, including the public.

Chairman Stempien asked the Town Attorney if the members of this Board should have received a copy of the letter that had been written on the 9t and received on the 14th as of that date or as close to that as possible. Attorney DeCrescenzo said that is a staff issue. Chairman Stempien asked if there is a legal requirement for staff to pass on to the Board as much information as possible, as soon as possible, or is it reasonable to present it as was presented tonight. Attorney DeCrescenzo said that there are times when he writes letters that are attorney/client privilege that he does not want disclosed publicly. He said that this letter was not that, and it could have been released to the public. He said that if he feels that something is exempt from FOI and should not be released he marks it as such on the front page. It is then exempt from disclosure.

Ms. Martin made a motion to table this item. The motion was seconded by Mr. Horan and passed unanimously. Chairman Stempien said that this item is tabled until the next meeting (May 28, 2008).

1.. 08-05 Application of Allan & Judy Conal, Owners, requesting a Front Yard Variance to construct a covered front entry, pursuant to Article Eight, Section A of the Simsbury Zoning Regulations on property located at 21 Highwood Road. R-80 Zone.

Russell Liljedahl, Liljedahl Brothers, Inc., (contractor) spoke on behalf of this application. Also, in attendance, was John Beveridge, Architect. The applicants could not be here this evening, as they are away on vacation. Mr. Liljedahl said that they are applying for a variance to build a front entry that would project 6-feet 9-inches over the existing building line. Most of it going out is going to be a stoop with a two foot section actually living space where the front entry comes forward. Mr. Liljedahl showed the Board members this on drawing B (floor plan). The foyer will be bumped out about two feet and beyond that there would be a continued cover. Mr. Beveridge said that there are two issues here. One is a functional and the other is aesthetic. He asked the Board members to look at picture number 4 which shows the front door and the immediate foyer (small for house). Mr. Beveridge also said that if they look at the front elevation to this house, it is rather drab. He is trying to make the home look more like a Georgian colonial than the tract house appearance it now has. Part of the aesthetic, beyond the function of expanding the foyer just so that it works, is to essentially break up the long line of the front of the house. Ms. Martin said that they are concerned with safety issues on how this might remedy any safety concerns coming in and out of the house.

Ms. Charest (Zoning Enforcement Officer) told the Board that in her staff report she gave a brief history on this property. Half of the lot is impacted by wetlands to the rear of the lot, and the septic was placed in front of the wetlands, thereby placing the only build-able area for the house 50-feet from the road (one-foot from the required front yard setback). Chairman Stempien said that the house was built there because of the wetlands and septic system.

Chairman Stempien read several letters form the file in support of the application for 21 Highwood Road.

Chairman Stempien closed the public hearing.

Ms. Martin moved to approve the application of Allan and Judy Conal, Owners, requesting a 6-foot 9-inch front yard variance to construct a covered front entry, pursuant to Article Eight, Section A of the Simsbury Zoning Regulations on property located at 21 Highwood Road. This is based on the location of the home on the property with both wetlands and septic to the rear of the property. The hardship being to increase safety within the house. The motion was seconded by Mr. Horan and passed unanimously.

As the affidavit had not been turned in correctly (notarized), the above approval is based on the applicant getting it notarized and returned to the Zoning Office upon their return from vacation.

V. RECEIPT of Application of Paul Robert, Owner, requesting a Side Yard Variance to construct an addition, pursuant to Article Eight, Section A of the Simsbury Zoning Regulations on property located at 48 County Road. R-40 Zone.

Proof of ownership for this particular property has not been turned in by the applicant. This applicant can be received, but not acted on until proof of ownership is received. Chairman Stempien received the application in and set the public hearing date for Wednesday, May 28, 2008.

VI. DISCUSSION AND POSSIBLE VOTE ON ANY AGENDA ITEM

The Board decided to hold a special Zoning Board of Appeals meeting in mid-May. to discuss the ZBA Rules and Procedures.

VII. APPROVAL OF MINUTES of March 26, 2008

Ms. Martin moved to approve the Minutes of March 26, 2008 as presented. The motion was seconded by Ms. Haase and passed unanimously.

Chairman Stempien read correspondence received from the Girard Brothers on mixed-use.

Chairman Stempien said that on May 17th, in Avery Point, Groton, there is going to be a seminar by the Connecticut Bar Association on roles and responsibilities of land use commissions, legal requirements and processing of land use decision making and map reading for site plan and review.

Chairman Stempien said that the Connecticut Conference of Municipalities is holding a class on Freedom of Information (FOI).

Chairman Stempien spoke of scheduling a special meeting to discuss the ZBA's rules and procedures in the middle of May.

Ms. Haase moved to adjourn the meeting at 8:45 p.m. The motion was seconded by Ms. Martin and passed unanimously.

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Thomas F. Horan, Secretary