Simsbury, CT - Zoning Commission Minutes 05/05/2008

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, James Gallagher, John Vaughn and Alternate Joseph Grace. Also in attendance were Director of Planning Hiram Peck, Zoning Officer Howard Beach, Commission Clerk Debra Sweeney and other interested parties.

Nord Christensen, representing Simsmore Square, stated that tenants at their regular meeting had requested that there be some sort of activity in the area that is in front of the #540 building. Sharon Flaminio, of Awakenings Natural Healing, suggested that a local farmers market be established and has assembled 14 local vendors, including George Hall, Town Farm Dairy, Tulmeadow, Epsteins and Harvest Café. The area would be approximately 200' x 300'. Vendors would park on the grass and set up tables behind their vehicle and patrons would park in the existing lots. The market would operate initially between 3:00-7:00 PM on Thursdays from June 19th-October 2nd.

Ms. Flaminio explained that all vendors would be farms that are certified through the Department of Agriculture and goods sold would all be high quality and locally grown produce and goods such as lambswool, cheeses, eggs, honey and honey-based products such as salves and beeswax candles. Chairman Barney confirmed that there would be no yard goods involved.

Ms. Flaminio stated that they have been working with the Chamber and Main Street Partnership and have gotten several organizations to volunteer free adverstising. Mr. Delehanty asked about visibility and Mr. Christensen stated that it would be somewhat visible from the street. Mr. Gallagher asked about the maximum number of vendors that the area could hold and Ms. Flaminio stated that they have mapped out the area to hold a maximum of 26 vendors with 10' x 10' spaces, but that there are also areas to the west and the center which could be used for expansion, if necessary. Mr. Grace asked if parking would be a problem and Ms. Falminio replied that, using statistics from the temporary library, the space has sustained approximately 700 visitors per day. Mr. Christensen stated that they are currently reviewing signage options for approval. Chairman Barney stated that Simsmore Square is allowed two A-frames and that they would have to come back before the Commission for any signage that is outside the signage plan that is currently approved for Simsmore Square.

Mr. Gallagher made a motion to approve the application of Dyno Nobel - Owner, Richard J. Higley, Agent, for a Site Plan Amendment for placement of a shed on property located at Dyno Nobel, 660 Hopmeadow Street. Mr. Elliott seconded the motion and it passed unanimously.

Chairman Barney stated that the owner of the southeast parcel on Route 10, which has been the subject of much discussion, has asked to be heard now that the matter of the PDD application is off the table. Mark Greenberg, 184 Fern Avenue, Litchfield, CT, stated that he is the owner of 34 Hopmeadow Street (also known as "the CL&P property") and was appreciative of all the time that the Commission put in on the PPD application that was made for the property and that he respected their judgment.

Mr. Greenberg stated that he has engaged in many discussions over the past few weeks relative to what process should be used for moving forwards with regards to development on this property as well as other properties in Town. He indicated that he has come to the conclusion that a full charrette with regard to all three properties is probably the best way to deal with this development issue. He also stated that he has no interest in developing the property in a way that would not make him proud. He felt that the benefits of a charrette would far outweigh the costs of the process and indicated that he would welcome being part of the charrette and would provide his full cooperation and welcomed questions from the Commissioners.

Mr. Gallagher asked if Mr. Greenberg would be willing to share the cost of such a charrette. Mr. Greenberg replied that he has been asked that question before, and although willing to consider it, he felt that doing so could detract from the charrette process, because then he would be paying for a result which would be a personal benefit to him and the charrette process could become tainted and subject to scrutiny.

Chairman Barney asked Mr. Greenberg to share his real estate background. Mr. Greenberg stated that he graduated from Cornell University and has converted over 100 rental buildings to coop/condominiums in New York City and his management company now manages over 7,000 units in New York City. About ten years ago, he moved to Connecticut, where he began buying shopping malls, office buildings and property. His current passion, however, is dog rescue and a 35,000 square foot dog rescue facility that he is currently constructing in Bloomfield.

Mr. Peck provided the Commissioners with a proposed timeframe for initiating and completing a charrette process and form-based code preparation. He noted that the end result of any current charrette would be a form-based code to be incorporated into the revisions of the Zoning Regulations which are currently underway and, as such, it would differ substantially from the prior charrette that was conducted, in which a vision was stated, but made no specific regulatory recommendations. Chairman Barney clarified that "form-based code" means that actual regulations would come to the Zoning Commission for adoption for each of the three sites. Mr. Peck added that it is an architecturally-based code which is actually adopted as part of the Zoning Regulations.

Mr. Peck's proposed schedule began in May with recommendations being made to the Board of Selectmen for possible action and funding and the issuance of RFQ's and RFP's. In June, staff and Special Counsel would organize a meeting of all the stakeholders to explain how the process works and establish a completion date. RFQ's and RFP's would be received by the end of June. Background preparation by staff and consultants would happen in August, a time when many are unavailable for public meetings. The actual process would commence in September. Final plans and regulations would be presented in October and new Zoning Regulations and the form-based regulations would be completed by November 2008.

Mr. Peck also provided the Commission with a proposed budget estimate of $169,000-$370,000 for consultants (depending on 1-3 areas being addressed), traffic/environmental consulting of $80,000, a maximum of 200 hours of Special Counsel's time, as well as outside costs (administrative, meeting and hearing costs) and adoption/printing costs (training, printing and hearing costs).

Chairman Barney asked Mr. Peck to describe the "product" that would result from a charrette. Mr. Peck stated that a charrette would produce specific pictures and diagrams of activities that could take place at each of the three sites as well as a set of regulations. He noted that there could also be a variance between economic viability and what people want to see and that would have to be resolved. He stated that there would be a certain amount of flexibility and that various uses would be shown for given buildings which are often needed due to changes in the economy and shifting markets. He added that there are currently many discussions going on across the country in this area.

Mr. Peck also addressed the various mechanisms that would need to be set up for input from the townspeople, such as communication via a website as well as incentives for meeting attendance, such as food. There would be a final consultant presentation and, ultimately, the Commission would be required to hold a Public Hearing prior to adoption. Mr. Peck noted that the Zoning Commission would have control over the selection of consultants, but that it would have to be in coordination with the other commissions.

Chairman Barney stated that, although the expense of a charrette is a large amount, the yield is far greater and that it is important for the Board of Selectmen and Board of Finance to agree to move forward. Mr. Elliott stated that he is very supportive of moving forward to a charrette, but was not in favor of addressing only one site, such as the Center. Mr. Grace agreed with Mr. Elliott that it is the only way to get things done. Mr. Delehanty supported the idea, but was concerned that it is currently unknown as to whether the owners of the northern property site are onboard with the idea. Mr. Vaughn concurred and thought that the vision should be for the whole town.

Mr. Elliott made a motion that Zoning Commissions support and recommend to all the Commissions and Boards and, ultimately, the Board of Selectmen that the Town engage in a charrette process for all three districts following the outline as provided by Hiram Peck. Mr. Vaughn seconded the motion and it passed unanimously.

Mr. Peck introduced Chris Wood of Wood Planning Associates. Mr. Wood presented the Commission with a preliminary outline of the Zoning Regulation revisions. He stated that he has gone through the 2005 draft and has prepared a series of detailed questions for Mr. Peck. Once those are resolved, he will then come before the Commission with the larger questions, including what to do about the gateway and center districts. Chairman Barney stated that the Plan of Conservation and Development included over 200 recommendations for revisions and asked how many of these could feasibly be addressed given the overwhelming amount. Mr. Wood agreed that priorities needed to be addressed, but also thought that many of the recommendations might be superseded by charrette process results.

Chairman Barney asked if the revisions would address issues such as black sky, green building, energy conservation and agricultural zoning as there has been public interest in addition to his own personal interest in these areas. Mr. Wood replied that he would supply the Commission with examples of some recently drafted regulations in these areas for their consideration.

Chairman Barney found the proposed Table of Contents to be better organized than the existing regulations. Mr. Wood also suggested that a pattern be used that each district section contain zones by approval vs. zones by special exception and that the format be consistent throughout. He expected to have a first draft available shortly, at which time a work session could be scheduled.

Mr. Elliott thought that attention should be given to making the regulations more contemporary such that there is an increase in ease of use for developers and that items which feasibly could be delegated to staff approval without coming before the Commission be flagged. Mr. Wood commented that the lack of facility in the developer process is in no way unique to Simsbury or zoning commissions and is a common problem.

Mr. Grace made a motion that a Subcommittee, consisting of Mr. Delehanty as Chair, Mr. Gallagher and Mr. Elliott, be formed to work on the draft of the Zoning Regulations revisions with Chris Wood. Mr. Vaughn seconded the motion and it passed unanimously.

Mr. Peck noted that such a subcommittee is subject to Freedom of Information regulations. Mr. Delehanty added that all e-mail correspondence to the members should be through their Town mailboxes, with a short note to their personal mailboxes indicating that a message has been sent and needs to be retrieved.

Chairman Barney stated that he had asked Town Attorney Robert DeCrescenzo to address the conservation easement document which contains language that he found to be somewhat questionable. Attorney DeCrescenzo advised the Commission that he had reviewed the Commission's actions in the course of its March 19, 2007 site plan approval which contained 14 conditions. The language in question is found in Condition #2 :

The Conservation Easement area shall not be decreased in any area along West Mountain Road on the Hoffman property and shall be underplanted as shown on the detailed landscaping plans and irrigated as agreed to by the applicant. In addition, the Conservation Easement area shall wrap around the entire unpaved area of the northern portion of the Hoffman property. The Conservation Easement is to remain in place in this configuration and in perpetuity.

Attorney DeCrescenzo noted that there currently is a conservation easement covering a portion of this property and that the proposal by Hoffman made one year ago was to release that conservation restriction which covered a portion of the site and lasted for several years and replace it with a larger, more comprehensive conservation restriction that would extend in perpetuity.

Attorney DeCrescenzo showed the Commission the map that was in front of them at the time of approval showing a conservation restriction. The applicant had originally proposed a conservation easement that formed a horseshoe area around what was known as the "Markie property" ending at the 50 foot access strip. However, during the public hearing, there was discussion amongst the Commission and the public indicating that they would rather see the easement wrap around the property being developed and he believed that to be the origin of the map, which was subsequently sent to the Board of Selectmen on March 26, 2007. Attorney DeCrescenzo stated that the map to be filed as a recordable condition showing meets and bounds of the proposed easement was consistent with and satisfied Condition #2.

The Grantor expressly reserves the right to modify the conservation easement area for the sole purpose of providing access to the right of way and land lying to the north of the subject premises subject to the approval of the Simsbury Zoning Commission and the Simsbury Board of Selectmen.

In his opinion, Attorney DeCrescenzo felt that Paragraph 10 is not inconsistent with the grant of a conservation restriction as it is a voluntary conservation restriction that is not required by the Regulations and is something that applicant offered to the Commission as part of the approval process.

Attorney T.J. Donahue, speaking on behalf of the property owner, noted that this is a substitution easement to an easement that was previously recorded. The original easement provided that the restrictions and covenants could be modified or released by the grantor and the First Selectman of the Town of Simsbury as well as a majority of the Zoning Commission. The rights to modify subject to the Selectman's and Zoning Commission's control was not a new provision.

Chairman Barney recalled that the Commission specifically said that the easement was to be the northern line in perpetuity and had no intent to create permission for it to creep north and, specifically, that there would be no access through the conservation easement. He found Paragraph #10 to be inconsistent with that condition. Mr. Delehanty noted that Paragraph #10 is not that different from the end of Paragraph #3, which binds the grantor until something approved by the Board of Selectmen and the Zoning Commission terminating or modifying the restrictions is placed on record. He thought the only difference between the two was who instigates the action and that Paragraph #10 would give the grantor the right to petition the Board of Selectmen or the Zoning Commission, whereas Paragraph #3 is silent about who starts the process and does not require grantor consent.

Chairman Barney did not recall reservation of rights being part of the discussion and that there was an appeal period, now expired, in which the applicant could have addressed any omissions. He stated that the Commission very clearly delineated that it did not want the project to go north into the Markie property, which is why they wanted a solid buffer around the northern end of the property in perpetuity. Attorney Donahue disagreed and stated that the Hoffmans owned the Markie parcel at that time and there were discussions with the neighbors, counsel and the Town Planner relative to them coming in with a future application for the Markie site.

Mr. Delehanty was not certain there would be a problem with such a provision if both the Board of Selectmen and the Zoning Commission would have to be approached for any further action. Chairman Barney felt very strongly that a pledge had been made to the neighbors that the easement would be in perpetuity and unamendable. He stated that the Zoning Commission desires to preserve the rights and values of the property that is adjacent to the Hoffman property and, in that regard, Paragraph #10 is not acceptable.

Attorney DeCrescenzo stated that, as the grantee, there are occasions in which you do want to give a certain amount of flexibility and that such language is rather standard so as to not unduly bind your successors. Attorney Donahue added that the language in Paragraph #3 is the Town's form easement and is standard language. Chairman Barney stated that the fact that the document is a prototype format does not supersede the intent of the Commission. Further, he noted that the applicant has already submitted an application to modify and move a parking lot into the easement area.

Attorney DeCrescenzo indicated that the action required this evening is an approval of the map and conservation easement to be recorded in the land records. He strongly suggested that, in the future, the Commission have the actual easement document in front of them when any future approvals are made.

Mr. Gallagher made a motion to approve the Easement Map Depicting Proposed Conservation Easement Area Hoffman Enterprises with the condition that a note be added to the map that it was prepared in accordance with the approval of March 19, 2007 and based on representation by the applicant and relied upon by the Commission and, if that proves to be false and misleading, that this approval will be null and void. Mr. Delehanty seconded the motion and it passed unanimously.

Mr. Elliott made a motion to approve the Declaration and Grant of Conservation Restriction in favor of the Town of Simsbury with the conditions that Paragraph #3 remains but Paragraph #10 be removed and that the Town Attorney draft a letter to the Board of Selectmen expressing the Zoning Commission's intent and desires relative to this easement. Mr. Delehanty seconded the motion and it passed unanimously.