Simsbury, CT - Zoning Commission Minutes 03/17/2008

ZONING COMMISSION MINUTES

Austin Barney, Chairman, called the Regular Meeting of the Zoning Commission to order at 7:00 p.m. in the Main Meeting Room of the Simsbury Town Offices. The following members were present: Garrett Delehanty, Jr., Bruce Elliott, John Vaughn and Alternate Joseph Grace. Also in attendance were Director of Planning Hiram Peck, Commission Clerk Debra Sweeney and other interested parties.

II. APPOINTMENT OF ALTERNATES

a. Application of Pollar Enterprises, Owner, Glenn Knierim, Jr., Agent, for a Site Plan Amendment for a change of use on property located at 53 Quarry Road.

Glenn Knierim, Jr. spoke on behalf of the application. He explained that the property at 53 Quarry Road is an isolated complex with a history of nonconforming use. It is the former location of the old Pharos Farm, the only portions of which remain are the old milk processing plant (the building referenced in the application) as well as a residential building and a barn, which are not part of this parcel. The current site plan shows all of the old Pharos Farm property owned by the Town as open space; there are residences, but they are over 500 feet away and up a cliff. In 1972, the owner was granted permission under the zoning regulations to convert a portion of the building to offices, which have remained as such ever since. In 1976, an application was made on the other end of the building to be used as a nursery school. The nursery school has now left and the current owner would like to rent the space to Happy Tails, a dog grooming business.

Mr. Delehanty asked if there is currently any residential use on the property. Mr. Knierim replied that the old farmhouse remains and that the Town owned both the house and barn until 2000, when it sold them to Pollar Enterprises, LLC, who now rents them to tenants.

[Alternate Madeline Gilkey joined the meeting at this time.]

Chairman Barney asked about signage. Mr. Knierim stated that there is currently a modest sized freestanding sign designed to show several tenants and that Happy Tails could feasibly use a portion of the existing sign, although the signage issue had not yet been addressed. Chairman Barney stated that, if this is the case, then no additional permit would be required.

Chariman Barney confirmed that there would be no dogs outside, nor any kennels or runs and suggested that this condition be included in the lease so as to protect all the parties.

Mr. Delehanty made a motion to approve the application of Pollar Enterprises, Owner, Glenn Knierim, Jr., Agent, for a Site Plan Amendment for a change of use on property located at 53 Quarry Road as submitted. Mr. Elliott seconded the motion and it passed unanimously.

V. APPROVAL OF MINUTES

Chairman Barney asked that page 2 of the March 3, 2008 minutes reflect that he also requested to have a referral to the Capitol Region Council of Governments and a review by Dwight Merriam, as the Town's land use counsel.

Mr. Delehanty made a motion to approve the minutes of the March 3, 2008 meeting as modified. Mr.

Elliott seconded the motion and it passed unanimously.

Mr. Delehanty made a motion that Items VII (Other Matters as May Properly Come Before the Commission) and VIII (Staff Reports) on the agenda be moved before Item VI. Mr. Grace seconded the motion and it passed unanimously

VI. OTHER MATTERS AS MAY PROPERLY COME BEFORE THE COMMISSION

Mr. Elliott made a motion to approve the letter as drafted to the Board of Selectmen re-appointing Dwight Merriam as the Town's land use counsel. Mr. Grace seconded the motion and it passed unanimously.

Chairman Barney noted that the subcommittee that was created to look at the issue of consultants for revising the zoning regulations has reviewed the three proposals solicited by Mr. Peck as well as Mr. Peck's recommendations. Mr. Peck stated that his recommendation, based on his review of the proposals, would be to engage Christopher Wood of Wood Planning Associates, primarily due to timing and the product that would result within that time. He noted that all the consultants would have done an excellent job, but that it is essential that the project get completed this year or the funds appropriated will be lost and noted that one proposal would have exceeded the $20,000 which was budgeted.

Mr. Elliott made a motion to support Hiram Peck's recommendation of Chris Wood as the consultant to assist with the revision of the Zoning Regulations. Mr. Delehanty seconded the motion and it passed unanimously.

Report from Planning Director, Hiram Peck

Mr. Peck indicated that a an application, which is not quite complete, has been received with regard to the Hoffman parcel that deals with reorganization, rezoning and a site plan with a proposal to create a parking lot in the rear Markie property. He said that the application will be scheduled for hearing as soon as it is complete.

Mr. Peck also stated that he has had a discussion with the Simsbury Cemetery Association on Plank Hill Road, which had been before the Commission previously in 2005 for an excavation application. He indicated that they will be back before the Commission in the near future with a revised plan and with answers to a number of questions.

Report from Zoning Enforcement Officer, Howard Beach

VIII. ZONING COMMISSION WORKSHOP PRESENTED BY STEVEN BYRNE, ATTORNEY

Attorney Steven Byrne of the Connecticut Federation of Planning and Zoning Agencies provided the Commissioners with a folder and booklet for the workshop and reviewed the following subjects with the Commission:

Attorney Byrne indicated that the State has delegated the Commission with some of its "police powers" and provided copies of selected applicable Connecticut General Statutes that pertain to zoning commissions in the workshop booklet. He noted that the number of commissioners on Simsbury's Zoning Commission is set by its Town ordinance rather than State statute. He stated that the purpose of an Alternate is to be there in case they are needed, but once they are seated, then they have all the rights and privileges of a regular member. If not seated, they can sit in on discussions, ask questions, but can not vote. He also noted that, in an instance where an alternate is seated for an application that extends into multiple hearings, the better rule is for the alternate to remain seated for the duration of the application for the sake of continuity. However, if the original commissioner who was absent at the first hearing subsequently becomes informed (reviews submissions, listens to the tape, etc.), he/she could be reseated at the discretion of the Chairman. However, there can only be 6 votes in total.

Attorney Byrne stated that courts generally look for the degree of closeness that a commissioner has to an issue, such as a personal interest or financial gain. If and application involves an immediate family member or property located in a commissioner's neighborhood, then it is best if the commissioner steps aside if he/she would realize a gain greater than the general public. He noted that some grey areas involve an application involving property owned by the commissioner (in which case it would be better to be represented by a third party), a spouse or family member who champions some issue or heads (rather than is a member of) a special interest group, or when a commissioner is also a board member of an organization, in which case a full disclosure should be made at the onset of a hearing.

Public Meetings/Hearings

Attorney Byrne stated that the purpose of public meetings is to ensure that information is open to the public and subject to due process. He noted that violations of public meeting notice regulations can jeopardize a decision and that special meetings must be posted 24 hours in advance. The exception to the rule of everything being out in the open are Executive Sessions, which should involve only members of the Commission. Others may be invited in to answer questions, but then should leave the session.

[Commissioner James Gallagher joined the meeting at this time (7:50 PM).]

Attorney Byrne noted that meetings are recorded so that a judge can review discussions around a subject in addition to any minutes and/or motions. The purpose of a public hearing is to be fair and open with the right to comment, but the commission also has the right to set procedural ground rules. The day of receipt for an application is the date of the next regularly scheduled meeting of the commission and is when the clock starts relative to deadlines: 65 days to begin a hearing. 30 days to complete a hearing, 65 days to render a decision, with the potential for extensions up to 65 days. If a zoning commission's decision is pending on a wetlands commission decision, the zoning commission has 35 days after the wetlands decision and does not have to render a decision within its 65 day constraint.

It was noted that a potential repercussion of a procedural error on the part of the commission is that a decision is reversed; misrepresentations of the commission could help an applicant on appeal. However, misrepresentations on the part of the applicant can result in a commission's decision being upheld.

In the case of predetermination, the court looks for a "no way, never" attitude on the part of a commissioner and expects a posture of open mindedness.

Notices should be adequate so as to apprise the public as to what a decision involves and where a property is located, which can sometimes be problematic for non-addressed property.

Reasons for a given decision should be on record and decisions are final when published in a newspaper.

Attorney Byrne noted that a failure or reluctance to enforce zoning regulations can leave a government subject to a lawsuit.

A statement of the vote of the Planning Commission approving, disapproving or proposing modification of a zone change proposal must be publicly read at any public hearing thereafter; if not done, the Zoning Commission's decision may be jeopardized.

failure to act within the statutory timeframe will result in an automatic approval.

Special permits differ from variances in that the zoning regulations allow such uses subject to approval by the Zoning Commission whereas a variance goes directly against a provision in the zoning regulations. A special permit can be denied if it fails to meet general requirements with regards to health and safety of the surrounding neighborhood even if it meets all the specific requirements. There are no automatic approval provisions relative to special permits; the application process would need to be repeated.

Statutes state that nonconforming uses should be reduced to conformity as soon as possible, when in essence they are really protected uses. A nonconforming structure becomes protected after three years. Abandonment is a grey area and courts lean towards the intent of the owner to give up the nonconforming use. Discontinuance of use is one area to consider, but is not a standalone factor.

Dealers/Repairers Licenses/Gasoline Stations

Formerly the domain of the ZBA, these areas have been moved to the purview of zoning commissions. It was noted that approval from the Zoning Commission is needed for DOT applications.

The Zoning Commission can set fees for notice costs and the Town Charter in Simsbury allows it to recoup fees from developers.

Intervenors can only raise environmental issues. Once an intervenor files and is recognized, they must receive all notices and receive the same allotment of time as the applicant. If an intervenor disagrees with the commission's decision and wins in court, the Town may have to pay their attorney fees.

Limitations on Zoning Power

Areas in which zoning power is limited include family daycare, manufactured homes, licensed community residences for the mentally retarded and various federal statutes that place certain limitations on local zoning.

Mr. Delehanty made a motion to adjourn the meeting at 9:06 p.m. Mr. Elliott seconded the motion and it passed unanimously.

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Garrett Delehanty, Jr., Secretary