Simsbury, CT - Zoning Commission Minutes 07/072008

Austin Barney, Chairman, called the Regular Meeting of the Zoning Commission to order at 7:00 p.m. in the Program Room at Simsbury Public Library, 725 Hopmeadow Street, Simsbury, CT. The following members were present: Garrett Delehanty, Jr., Scott Barnett, Bruce Elliott, James Gallagher, and John Vaughn and Alternates Joseph Grace and Madeline Gilkey. Also in attendance were Director of Planning Hiram Peck, Commission Clerk Debra Sweeney and other interested parties.

Richard Mercer, 15 Scarborough Road, Simsbury spoke for the application. Per the request of the Commission at a prior meeting, Mr. Mercer stated that he had met with the Design Review Board, Mr. Peck, Mr. Beach and Ms. Charest and was now submitting a package that addresses all the concerns posed by the Commissioners. Mr. Mercer indicated that he is proposing to build a yoga studio with tenants whose business would be synonymous with yoga, such as chiropractors or massage therapists, in an old automotive building. He stated that the environmental issues have all been taken care of in connection with the sale of the building. Walls will be constructed inside the building to create a yoga room, lobby space and locker rooms and the outside will be stucco color with a roof overhang.

Mr. Grace asked about the soil testing and any plans to monitor ground water in the future. Mr. Mercer stated that Chester Environmental Associates has noted in their report State policies and procedures that must be followed based on what was found in the soil and that there will be a three-year monitoring process (a copy of their comments was supplied to the Commission with the application).

Ms. Gilkey thought that the neighbors had concerns relative to lighting and thought that the pictures provided showed that their house would be very much exposed to lights. Mr. Mercer replied that he has worked with a lighting architect and that there will be no light leaking to any of the properties and that the existing lights will be removed.

Mr. Elliott asked about the monitoring well and Mr. Mercer stated that it had to be installed by Chester Environmental in order for the property sale to conclude as part of a Level 1 environmental study. Mr. Elliott also asked why the overhead doors would remain. Mr. Mercer stated that his initial focus is to get the yoga business up and running and that they would most likely be cinder blocked in once tenants are known; however, he did not want to renovate until future tenant needs were identified.

Chairman Barney summarized that Mr. Mercer's planned order of events would be to expand the mechanical room, do the exterior renovations, start up the yoga business and then acquire tenants. Mr. Peck stated that a staff letter dated July 1, 2008 indicates that all outstanding issues have been addressed. Chairman Barney noted that the Design Review Board had recommendations regarding planting and the color of poles and asked Mr. Mercer if he would be agreeable to these being included in a motion to approve. Mr. Mercer did not have any objections.

Mr. Delehanty made a motion to approve as submitted the application of Joel D. Weisman for 7 Deer Park Road, LLC - Owner, Richard Mercer, Agent, for Site Plan Amendment for a mechanical room expansion at 7 Deer Park Road with the condition that the applicant install sufficient plantings to break the direct view of the neighboring house and that the recommendations of the Design Review Board be considered to the extent possible. Mr. Barnett seconded the motion and it passed unanimously.

a. Application of Jeffrey S. Hoffman, Hoffman Enterprises - Owner, Thomas J. Donahue, Jr., Attorney, Agent, for a Zone change from R-40 to B-3 on property located at the Hoffman Auto Park, 395 West Mountain Road (Map A-19, Lot 2E8, Block 503). R-40 Zone. (continued from meeting of June 16, 2008), including the Application of Jeffrey S. Hoffman, Hoffman Enterprises - Owner, Thomas J. Donahue, Jr., Attorney, Agent, for a Site Plan Approval for a proposed vehicle storage area on property located at the Hoffman Auto Park, 395 West Mountain Road (Map A-19, Lot 2E8, Block 503). R-40 Zone. (continued from meeting of June 16, 2008).

Attorney T.J. Donahue, 22 Country Club Drive, of Killian & Donahue, representing Hoffman Enterprises, stated that they have continued to work diligently on this application, which is continued from the previous meeting. He indicated that the applicant is providing a new plan which takes into account comments from neighbors and the Commission.

Tom Daily, a civil engineer with Milone & MacBroom, reviewed the revised plan, indicating that the 50-foot right-of-way has been reconfigured to sweep down gradient towards Maureen Drive and been removed from the R-40 area of approximately 41,000 square feet, which remains intact. The reconfigured right-of-way would enter at the location of the current existing right-of-way. Further, the proposed parking area as been re-orientated to meet with the current Hoffman property, dropped downgrade and pulled to the south, increasing the vegetative buffering and the opportunity of berming to the north of the property. The detention basin was also realigned from an east/west orientation to be north/south and additional fencing was added.

Chairman Barney asked if consideration had been given to his suggestion that was made at the last meeting relative to putting the parking on the existing conservation easement and making the Markie property the new conservation easement. Attorney Donahue stated that the suggestion was reviewed, but that topography and limitations of the site did not allow for it and environmental engineers did not advise going on top of the detention basin, noting that the current plan uses only 1.3 acres for parking out of 5.9 acre Markie property.

Chairman Barney noted that there was huge discussion over parking requirements in connection with the prior application which as approved 14 months ago and, at that time, the applicant indicated that none was needed. He asked what has changed since then. Attorney Donahue stated that, at the time, there was a contentious legal dispute regarding 50-foot right-of-way which was in between the Hoffman parcel and the Markie parcel. It was decided that they would take the approval on the front piece and deal with the litigation in the future. Attorney Donahue stated that discussions regarding parking revolved around meeting the Town's specifications for parking and they did.

Chairman Barney stated that the Commission made its approval based on what was presented and had no knowledge of those litigations at that time, nor did it have knowledge of any other issues or conditions that affected Hoffman's business. Sam Pines of the Hoffman Auto Group stated that the primary change that has happened are recent demands made by Honda and Toyota relative to inventory parking.

Chairman Barney asked if the right-of-way could be significantly altered to the south, given the slope. Mr. Daily stated that it could possibly be moved by 50 feet, but not by 100 feet. Ms. Gilkey noted that moving it would then make the retaining wall visible. Mr. Daily also noted that the retaining wall would then need to be 25-feet tall and that would involve construction issues.

Chairman Barney asked Mr. Pines how many cars are currently maintained on the site. Mr. Pines stated that there are approximately 400 new cars, with some used and trade-in vehicles, plus those associated with service, parts and sales parking. He thought that the monthly turnover was approximately 250-300 new cars plus used cars.

Mr. Elliott asked for clarification about the parking requirements that were discussed at the time of the prior application. Attorney Donahue stated that the applicant had represented that they did fulfill the legal requirements for parking as required by the regulations. Mr. Elliott asked if they intentionally did not bring it to the Commission's attention that there was inadequate inventory parking. Attorney Donahue stated that it was always understood that the applicant would be coming back before the Commission, once the litigation issues were resolved, relative to a reasonable use for the Markie parcel.

Mr. Barnett stated that it was his recollection that discussions regarding parking revolved around, not what made sense relative to the regulations, but rather what made sense relative to running the business. However, even if there was ambiguity over which type of parking was being discussed, it was crystal clear that there was an overall reluctance to move further development up West Mountain Road. Attorney Donahue stated that the applicant had unanimous support of the Planning Commission, Inland Wetlands and the Economic Development Commission to fully utilize the Markie parcel as commercial. Mr. Barnett replied that he is very supportive of commercial development of that area of Town and was fairly certain that he made most of the motions to approve virtually every aspect of the prior application with the one major exception being the Markie property, which was the one item that was mutually taken off the table. He stated that he was fundamentally concerned over development going up West Mountain Road then and that has not changed in his mind since then.

Attorney Donahue stated that at the time the Fiora 50-foot right of way was the divider between commercial and residential and it remains that way in the current plan. He noted that the access is to Route 44 and there is no commercial access to West Mountain Road. Chairman Barney asked how many parking spaces were north of the property line and Mr. Pines thought that there were 180-200. Chairman Barney reiterated his desire to solve the problem operationally by using the conservation easement with offsite parking without going north of the line. He stated that he is trying to find a way to help the applicant, but that there is significant feelings against going north of the line and is searching for middle ground.

Attorney David Sherwood, representing Betty Fiora, the westerly abutter, stated that Ms. Fiora wishes to maintain the current access road and has no plans to change it unless the residential property to the west were to be approved for subdivision. He stated that the expense and grade make it questionable as to if the road will be developed at all, but that she wishes to preserve her options.

Attorney Sherwood stated that there is no proposed connection between the subdivision road and the Hoffman property and that that connection would be impossible to make due to covenants that would be made if the application were to be approved. He also asked that the Commission focus on the best use of the six-acre property that is in between the Hoffman property and the balance of the residences on West Mountain Road. He noted that the alternate use, if this application is not approved, would be a 5-6 residential subdivision, which would have a greater impact on the neighborhood than this proposal. He said that an extensive effort is being made to buffer the site from the neighbors and that it is important to decide what is the best compromise between those wanting commercial development and those wanting no development at all.

Dave Mattson, 7 Maureen Drive, stated that he was willing to have the Markie property developed residentially and that he was conceptually opposed to the property being rezoned commercial and found it hard to believe that Hoffman could not have anticipated its future parking needs. He reminded the Commission of their decision that was made last year and asked them to maintain the residential character of the neighborhood.

Harald Bender, 6 Maureen Drive, questioned the "unanimous support" of other Town commissions, noting that Inland Wetlands is concerned about water run-off from the parking lots and that the Planning Commission vote was tied 3-3. He said that he was not in favor of rezoning the property, but if the application were to be approved, then he wants it to be the best configuration possible and offered some proposed alternative configurations keeping the parking on the current property.

[Mr. Pines stated that Avon Water Company had to shut off the water in the evening hours in connection with piping installations so that water service could resume in the day. Chairman Barney asked him to investigate construction activity on the façade of the Nissan building that Ms. Flynn had also observed taking place prior to 7:30 a.m.]

Tom Frank, 19 Banbury Drive, stated that he was a member of the Economic Development Commission, but his comments expressed do no represent those of the Commission and are his personal views. He noted that the Plan of Conservation and Development (POCD) does not specifically prohibit commercial rezoning beyond the current limit and that the "Economic Development" section of the POCD includes the recommendation "to reduce the tax burden on property owners, by diversifying Simsbury's tax base and by growing the grand list to expand its economic strategies" as well as to "retain, expand and recruit businesses." He noted that this application represents an expansion of an existing significant business and is in the spirit of the Plan of Conservation and Development to "encourage the expansion of existing businesses while minimizing the impact on surrounding neighborhoods."

Marlane Ganter, 382 West Mountain Road, stated that the residents' concerns are not just over access from West Mountain Road to the property, but the intrusion onto private property. She asked for the definition of "inventory storage" and why immediate access is needed to "storage". She also questioned the spontaneity involved in purchasing an expensive item like a car.

Chairman Barney asked Attorney Donahue if he would be willing to have a two-week extension until the Commission's next meeting so as to provide the applicant the opportunity to take into account any other ideas or suggestions, such as Mr. Bender's. Attorney Donahue agreed to the extension and referred to letters and petitions from neighbors who were in support of the project that were included in materials provided to the Commissioners.

b. Application of P. Anthony Giorgio, Member, Dorset Crossing, LLC, c/o The Keystone Companies, LLC, Thomas W. Fahey, Attorney, Agent, for a Text Amendment to Article Seven, Section G, Article Ten, Section A.4 and Article Ten, Section E.5 of the Simsbury Zoning Regulations on property located at 1507 and 1515 Hopmeadow Street, I-3 and B-2 Zone (tabled at 6/16/08 meeting).

Chairman Barney asked Attorney Thomas Fahey to summarize his request for the recusal of two of the Commissioners. Attorney Fahey stated that he represented The Keystone Companies and was requesting the recusal of both Mr. Elliott and Mr. Vaughn because they have been very active in supporting the SHARE group and that that he has personally witnessed Mr. Elliott testifying at public hearings in support of their positions and that he understood that he had also been a member of their Steering Committee. He noted that Mr. Vaughn was also a member of SHARE and in support of their concerns. With respect to the applicant's zone change application, he noted that the Zoning Commission and the Planning Commission were in specific receipt of a letter from SHARE opposing both the zone change application and the text change application.

He noted that the zone change application currently before the Commission is a very specific application which deals with a very specific piece of property owned by his clients. The letter was received while a decision on such application was pending and, although both Commissioners may not have any financial interest to be gained, a personal interest can be one that is advocated by group which takes very firm positions, which in this case has to do with Planned Development Zones and charrettes. He stated that, while the two Commissioners may have resigned from the organization to be elected on the party that was supported by the SHARE group, in order to have an impartial hearing that avoids even the appearance of impropriety, he felt that the two Commissioners could not be impartial in acting on this application when they have been such forceful advocates for SHARE. He stated that, as property owners, his clients are entitled to a fair and impartial hearing with no appearance of impropriety.

Chairman Barney asked if Attorney Fahey had any specific factual proof for requesting these recusals. Attorney Fahey stated that the most recent SHARE newsletter indicated that Mr. Elliott was a past member of the Steering Committee. He stated that he also had personally attended meetings of this Commission in which Mr. Elliott testified on behalf of SHARE and that the letter from SHARE is currently in the Commission's receipt.

Mr. Elliott made a statement that, when he campaigned for office in the fall of 2007, he stated many times that, if elected, he would support implementation of the Town's 2007 POCD and, specifically, that he supported the introduction of some form of mixed-use zoning in Town. He also cited his regular attendance at Zoning Commission meetings for two years prior to taking office and his 20 hours spent attending related educational programs to better develop his technical understanding of the role of zoning commissioners. He cited a Supreme Court ruling noting that "the law does not require that members of zoning commissions must have no opinion concerning the proper development of their communities." Mr. Elliott stated that he does not have a deep and long-standing relationship with SHARE and that he resigned his membership upon becoming a candidate in June 2007. He stated that he is prepared to make an unbiased decision and declined to recuse himself. Finally, he noted that he has had no insight, participation or dialogue whatever about the SHARE position on the current application and that he was informed by e-mail, just as were the other Commissioners.

Mr. Vaughn stated that, after conferring with the Town Attorney, has found that none of the areas of conflict of interest as noted in State statute and rulings (personal gain, financial gain, family conflicts or proximity to the site) pertain to him. He stated that he has never been a member of the SHARE Steering Committee or any part thereof. He also refused to recuse himself as he felt that no conflict of interest existed.

Town Attorney Robert DeCresenzo stated that the decision to recuse is personal to the member that is being asked to recuse and that he had personally reviewed this matter with both members and Town staff and concentrated on the factual aspects of the allegation and provided the members with a review of pertinent law in this area. Attorney DeCresenzo stated that if Mr. Elliott and Mr. Vaughn, based on the facts presented tonight, believe that they can give a fair and unbiased hearing of this application, then they have met their standard. He added that the burden of proof in proving bias and prejudice resides with the party making the allegation.

Attorney Fahey reiterated his objection to Mr. Elliott's and Mr. Vaughn's participation in the hearing and felt that their interest is not "remote and speculative", but fairly direct and noted the case of Lorusso vs. The Naugatuck Zoning Commission in which the person was found to have inappropriately sat and was disqualified for speaking in opposition at hearings, writing letters in opposition and testifying before other commissions in opposition. He asked each Commissioner to state whether they have had any conversations regarding the content of the application, other than with the Town Attorney or Town staff, since the application was pending. Mr. Delehanty stated that he has not had any substantive conversations regarding the application. Ms. Gilkey, Mr. Gallagher, Mr. Grace, Mr. Barnett and Mr. Vaughn stated that they had not. Mr. Elliott stated that material regarding the application was not received by Commissioners until approximately 10 days ago. He stated that he has had some conversations with friends and neighbors that approached him as this matter was before the Planning Commission and was fairly widely known in the community, but that none of them were substantial discussions regarding his opinions. Chairman Barney stated that he had discussed the application with John Loomis, Chairman of the Planning Commission

Attorney Fahey requested that the zone change application be addressed first, but Chairman Barney felt that it would make more sense to address the text amendment first as it had more substance. Chairman Barney stated that he was going to put a time limit on the presentation and asked to be allowed to keep the application open for two weeks as he wanted to refer to the reviews of the Design Review Board and the Conservation Commission.

Attorney Fahey noted that the material provided with the application regarding the zone change incorporates at least seven of the performance objectives that are outlined in the POCD and also includes references to and information regarding the review criteria that exists in the Town's existing Design Development District, such as the need for the proposed use in the proposed location, the existing and future character of the neighborhood in which the use is located, location of the main and accessory buildings in relation to one another, the height and bulk of the buildings in relation to other structures, traffic circulation and availability of water and utilities.

Anthony Giorgio, owner of the property (with his partner, Karl Krapek), which consists of approximately 50 acres, stated that they have waited patiently for an opportunity to continue their investment in Simsbury. He noted that the past two years have involved much emotional discussion within the community as well as current negative rhetoric. He said that all they are trying to do is develop a project on a property that they invested in five years ago in a way that makes sense for the community and brings value.

Dr. Giorgio stated that they originally appeared before the Commission in 2006 with a recommended new zoning regulation, a PDD, as suggested by the Plan of Conservation and Development. At that time, they were asked by the Commission to withdraw their application so that the Town could prepare its own PDD in a timely fashion. However, after two and a half years, the Town still has no PDD.

He noted that the POCD refers to a village-type of development consisting of buildings no larger than 40,000 square feet (i.e., no "Big Boxes") as a desired type of development for the northern gateway and that their application has never deviated from this in their concept plan, which consists of a 40,000 square foot medical office building, small retail, office buildings, three two-story apartment buildings (single bedroom studio), a three-story fee-simple condo building with 16 units with price points beginning at $550,000, a Billingsgate type of development, high-end condos starting at $750,000, two-story two-bedroom townhouses (high $290,000-$325,000).

Dr. Giorgio stated that, when they withdrew their application in good faith, it was their belief, as well as the Commission's, that there would be a regulation in a short period of time. However, as there is still no regulation, it is his belief that a PDD is not needed as the current B-3 regulation allows for the opportunity, with a very rigorous review of site plan and issuance of special permits and site coverage information and elevations, etc., to develop a specific site seeking a mixed use designation of retail, office and residential. He also noted that the B-3 regulation is intentionally vague so as to allow the land use commissions tremendous authority as to what goes on and that their text amendment proposal seeks to strengthen the B-3 zone by inserting some additional limitations.

Dr. Giorgio stated that they have invested $500,000 in creating a team of experts, consisting of engineers, hydrologists, botanists, landscape architects, traffic engineers, architects, economic development people, and retail consultants, to provide this community with sustainable development. They also purchased property formerly owned by Cumberland Farms for $550,000. Added to the original purchase and reclamation of the land, which was a former pit, their total investment to date is $3 million and they expect to invest another $57 million.

If the key elements of the concept plan are developed, projected tax revenues would be $1 to $1.5 million. Relative to the fiscal impact, the projected school impact of the residential development, based upon an analysis of the one-bedroom or studio or the high-end condos, is about ten school-aged children among the 88 units. All roads would be private, requiring no public works maintenance. The only services required would be emergency services and all buildings would be sprinklered, based on discussions with the Fire Marshall. Dr. Giorgio concluded by reading the favorable referral from the Planning Commission for the zoning change. Chairman Barney asked for a copy of the Rutgers study regarding demographic multipliers, referred to by Dr. Giorgio.

Attorney Fahey noted that a new zone proposal requires that the concept plan include traffic issues. Scott Hesketh of Hesketh Associates stated that the traffic impact report that was prepared for the Meadowood development was consulted for background information on Route 10 across the site frontage to project average daily peak volumes to a design year of 2012 using a 1% per year growth rate. It was determined that the project would produce acceptable levels of service (B, C or D) during peak hours, taking into account the 299 new units generated by the Meadowood development. These levels of service refer to the level of discomfort experienced by motorists at the various intersections. If the project is approved, it would be submitted to the State Traffic Commission as a major traffic generator as required due to the size of the development. An additional traffic light would be required at the entrance to the site off Route 10 in addition to the traffic light which is required to be installed at the Hoskins Road intersection by Griffin Land as a result of the Meadowood settlement.

Dr. Giorgio indicated that mixing of uses on the site currently appears to be a much more viable option than mixing uses in a building. Chairman Barney asked if the site could feasibly be subdivided into separate residential and commercial lots. Dr. Giorgio stated that, from a practical economic point of view, given recent approvals in the community, more traditional residential subdivisions do not make sense. He felt that the community would benefit from a variety of housing stock with a variety of price points, which currently is not offered.