The Planning and Zoning Commission of the Town of Avon held a meeting at the Avon Town Hall on Tuesday March 6, 2012. Present were Linda Keith, Vice-Chair, David Cappello, Peter Mahoney, and Alternates Elaine Primeau, Donald Bonner, and Jenna Ryan. Mrs. Primeau,
Mr. Bonner, and Ms. Ryan sat for the meeting. Absent were Duane Starr, Chair, Carol Griffin, Marianne Clark, and Christian Gackstatter. Also present was Steven Kushner, Director of Planning and Community Development.
Ms. Keith called the meeting to order at 7:30pm and welcomed Jenna Ryan, the Commission’s newly appointed Alternate member.
APPROVAL OF MINUTES
Mr. Mahoney motioned to approve, as submitted, the minutes of the February 14 meeting. The motion, seconded by Mrs. Primeau, received approval from Messrs. Mahoney, Cappello, and Bonner and Mesdames Primeau and Keith. Ms. Ryan abstained.
PUBLIC HEARING
App. #4584 - William Deramo, owner/applicant, request for 2-lot Resubdivision, 2.69 acres, 359 West Avon Road, Parcel 4520359, in an R40 Zone
App. #4585 - William Deramo, owner/applicant, request for Special Exception under Section IV.A.5.of Avon Zoning Regulations to permit waiver of density requirement, 359 West Avon Road, Parcel 4520359, in an R40 Zone
Ms. Keith announced that Apps. #4584 and #4585 have been withdrawn by the applicant.
App. #4587 - Mary Vernon, owner, Lawrence Vernon, applicant, request for Special Exception under Section IV.5 of Avon Zoning Regulations to permit modification of density requirement for first division of land, 57 Smith Road, Parcel 3990057, in an R30 Zone
Ms. Keith reported that the applicant has requested a public hearing continuance for App. #4587 to the Commission’s next meeting, scheduled for March 27.
Mrs. Primeau motioned to continue the public hearing for App. #4587 to the next meeting. The motion, seconded by Mr. Bonner, received unanimous approval.
App. #4590 - Nod Brook LLC, owner, Eric Johnson, applicant request for Special Exception under Sections V.D. and V.O.5. of Avon Zoning Regulations to permit outdoor display and outdoor seating, 315 West Main Street, Parcel 4540315, in a CR Zone
Present to represent this application was Zane Phifer, representing the Fresh Market.
Mr. Phifer conveyed Fresh Market’s apologies for the condition of the rear of the building at the Nod Brook Mall. He noted that a company has been contracted to handle trash pickups on a more regular basis; twice a week pickup for all bales and pallets. He also explained that Fresh Market will do a better job managing the shopping carts in the parking lot.
Mr. Phifer addressed the outdoor display and outdoor seating request. He explained that seasonal items (in wooden crates similar to what is used inside the store in the produce area) would be placed in a 3-foot area on either side of the front door. He noted that Fresh Market follows a European-style business plan. He explained that a large number of plantings are proposed for the front of the building that will be installed in the spring; these plantings would provide a buffer for the outdoor display. He addressed the proposed outdoor seating area and noted that a railing on both sides with 2-foot bollards is proposed as a safety barricade.
Mr. Kushner explained that he received, today, a letter from the Spring Meadow Homeowners Association conveying their concerns about the trash and pallets to the rear of the building. He noted they also asked about possibly extending the fence to block the view of the trash area. Mr. Kushner recommended that this application be continued to the next meeting to allow Fresh Market time to document, in writing, the issues just discussed (i.e., trash pickup, shopping carts, outdoor display, outdoor seating). He asked Mr. Phifer to show, in detail on the drawings, exactly where the outdoor produce would be located; he added that the plan must comply with ADA requirements.
Ms. Keith asked if there was any space for the addition of some pine trees. Mr. Bonner noted that there used to be a row of pines on the site. Mr. Phifer explained that a substantial amount of plantings are proposed as part of the approved landscape plan; he added that a number of large plantings are proposed for the area where there used to be pine trees. He noted that fencing can also be added and commented that he fully understands the neighbors’ concerns.
In response to Mrs. Primeau’s question, Mr. Phifer explained that the outdoor merchandise display would contain produce items, such as apples and melons, and would not be covered. There are awnings on the side where the outdoor seating is proposed. Mrs. Primeau noted that outdoor display areas approved for other businesses in Town have been enclosed in some way. Mr. Kushner noted his agreement with Mrs. Primeau but explained that he doesn’t believe an enclosure is a Building Code requirement. He commented that the outdoor display areas approved in the past were probably required to have some type of enclosure due to their location/orientation in relation to other nearby buildings. He noted that the Commission required fencing for the outdoor display area approved at Walmart and
the types of merchandise they could display outside were limited. Mrs. Primeau commented that she feels it is important to define the boundary area for Fresh Market’s outdoor display, as it is important to keep the sidewalk area clear for pedestrians and handicapped individuals. Mr. Kushner concurred and noted that while the outdoor display area proposed for Fresh Market is much more modest than Walmart’s outdoor area, he reiterated that the plan should clearly identify this area so it can be properly enforced.
Mr. Phifer explained that the outdoor display is proposed to be located 3 feet off the building; he noted that the Building Code requirement is 3 foot paths.
Mr. Kushner requested that brass pins be installed in the concrete walk to define the corners of the outdoor display area.
Ms. Keith commented that the Commission wants a definitive plan for the outdoor display to avoid any problems in the future. She added that the Commission is always concerned with setting precedents. Mr. Phifer noted his understanding and added that only seasonal items would be displayed (i.e., pumpkins).
In response to Mr. Cappello’s question, Mr. Phifer explained that some stores pull the outdoor display bins inside the building at night but noted that some stores leave them out. He noted that Fresh Market would comply with whatever the Town wants. Mr. Cappello commented that he feels fencing on the sides would be good to close in the area. Mr. Phifer noted his understanding and agreement.
In response to Mr. Bonner’s questions, Mr. Phifer explained that Fresh Market does not sell cups of coffee and only sells prepackaged beverages. He noted that customers will buy ready-made items, like sushi and sandwiches and soda or other beverages, and eat outside. He further explained that the front-end staff would keep the front end of the store clean of trash; the front-end staff will also be responsible to bring in the shopping carts from the parking lot. Mr. Kushner suggested that these issues be added to the list of items to be addressed in writing, as discussed earlier. Mr. Phifer concurred.
In response to Mr. Phifer’s question, Mr. Kushner noted that he would be glad to meet at the site but also suggested that someone from Fresh Market should attend the next meeting to provide, in writing, compliance/assurances for all the issues discussed tonight. He noted that the Avon store manager could attend rather than Mr. Phifer. Mr. Phifer noted his understanding and added that he may bring the store manager with him to the next meeting.
Mrs. Primeau motioned to continue the public hearing for App. #4590 to the next meeting, scheduled for March 27. The motion, seconded by Mr. Bonner, received unanimous approval.
App. #4591 - Lovley Development, Inc, owner, Ronald Frattini, applicant, request for Special Exception under Section IV.A.4.p. of Avon Zoning Regulations to permit 2 rear lots, 181 Arch Road, Parcel 1090181, in an R40 Zone
Present to represent this application were Brian Denno, Denno Land Surveying; Mark Lovley, owner; and Edward Ferrigno.
Mr. Denno explained that the proposal is to create one rear lot (Lot #2) at 181 Arch Road; the site contains 4 acres with 165 feet of frontage located in an R40 zone. The parcel has an existing house (Lot #1) that the owner would like to demolish and construct a new home. The front yard setback on Arch Road is 60 feet but the new house is proposed to be constructed approximately 120 feet back from the road. He noted that the rear lot is proposed at 95,000± SF. Mr. Denno noted that the property is entitled to a “free split” not requiring subdivision approval; the parcel has existed since 1955. He noted that part of the proposal requests a 300-foot access easement over the front lot (Lot #1) to serve the rear lot (Lot #2) for a driveway and utilities.
Mr. Kushner commented that the subject lot is quite large and noted that both lots would be oversized. The front lot is proposed to be approximately 79,000 SF, which is almost twice the land area needed for a front lot in the R40 zone. The rear lot is approximately 95,000 SF; a rear lot in the R40 zone requires a minimum of 80,000 SF. The property has gentle slopes and is well drained; two lots fit nicely on the site and appear to be a nice fit with the existing homes in the neighborhood. He confirmed that the owner has demonstrated that this parcel is entitled to a first cut and, therefore, no subdivision, or open space dedication, or fee in lieu is required.
Mr. Kushner addressed access for rear lots noting that in 2008 the Zoning Regulations were amended to require, under most circumstances, that driveway access for a rear lot exist over a 30-foot land strip to be owned in fee by the rear lot. He explained that before the 2008 amendment there were two options under the Regulations; either the 30-foot driveway access/ strip could be owned by the rear lot or the 30-foot driveway access/strip could exist via an easement over land owned by the homeowner of the front lot. Mr. Kushner stated that the subject application seeks a waiver under the current Regulations, which state that rear lots must be served by a strip of land owned in fee unless waived by the Commission. He noted that the applicant can address the Commission and explain why they feel a waiver
should be granted but added that the Regulations state that a waiver will be granted in cases where the Commission makes a determination that an easement is superior to an access strip owned in fee. He concluded by noting that potential issues could exist between the land owner and the easement owner but added that constructing a driveway in this location is not a problem.
Mr. Denno stated that no grading would be required for the driveway and added that there would be minimal clearing; the clearing for the proposed rear lot only exists along the border with 191 Arch Road. He commented that plantings could be added at the end of the driveway, within the easement area, to provide a buffer from the front lot to the rear lot. He stated that the subject parcel has existed in the current configuration since 1955 and rear lots exist on both sides.
In response to Ms. Keith’s question, Mr. Denno confirmed that the front lot would have its own driveway.
Mrs. Primeau asked why an easement is being requested if there is enough land area and both lots are larger than the minimum required. Mr. Kushner explained that the parcel has only 165 feet of frontage on Arch Road, both at the street and at the front yard setback. He noted that a few years ago the Regulations were changed to require 170 feet of frontage in the R40 zone, a change from the original requirement of 150 feet. The side yard setback was also increased to 35 feet from 25 feet. He explained that if the subject site had 200 feet of frontage on Arch Road, 30 feet could be used for the access and there would still be 170 feet to satisfy the Regulations. He further explained that the existing 165 feet of frontage conforms to the old frontage requirement but does not conform to the
current requirement. He noted that the applicant has documented the existing condition of 165 feet of frontage and proposes to make no changes to that condition; easement rights would be conveyed to the rear lot but no land conveyance would occur. The existing house on the site would be demolished and a new house constructed further back on the front lot.
Mrs. Primeau indicated that it is her preference for each house to own their driveway. Mr. Kushner noted his understanding and commented that he believes the Regulations were changed because that viewpoint was the Commission’s general consensus.
In response to Mr. Cappello’s question, Mr. Kushner explained that even if the lot had the required 170 feet of frontage the owner would not be allowed to deed away any land for an access, as that would cause the lot to become nonconforming. He further explained that the lot would have to have a minimum of 200 feet of frontage in order to be able to give up 30 feet for an access.
In response to Ms. Keith’s questions, Mr. Denno explained that only the overhang of existing trees would be cut for the driveway installation. He noted that some trees would have to be cut to position the construction of the new house so that it is located uphill of the septic system. He stated that no material would be trucked off the site.
In response to Mr. Cappello’s question, Mr. Kushner explained that the original lot configuration proposed two rear lots; the revised plan proposes one front lot and one rear lot.
In response to Mr. Cappello’s question, Mr. Denno explained that the new house proposed for the front lot has been moved back to offer protection from the road; the existing house is located quite close to Arch Road.
Daniel Carvalho, 173 Arch Road, commented that he was grandfathered in prior to the new law for the easement on the driveways. He noted that when he applied he was told by the Town that he needed a minimum of a 3-acre lot in the rear and that he was not allowed to have anything less; it had to be 170,000 square feet and there was not to be anything smaller than that. He asked why a smaller lot is now being allowed to be built.
In response to Mr. Carvalho’s questions, Mr. Kushner explained that the rules have not changed since 1957 with respect to acreage requirements to create a rear lot; he noted that 80,000 SF is needed to create a rear lot in the R40 zone. He further explained that the only rule that changed involves driveway access for rear lots and whether the access is owned in fee or via an easement over the front lot. The Regulation change in 2008 says that driveway access for rear lots, in most circumstances, should be owned in fee except that the Commission can grant a waiver to allow an easement. Mr. Kushner reiterated that the rules never required 3 acres for a rear lot.
Mr. Carvalho asked if the 3-acre lots along Arch Road are a coincidence. Mr. Kushner explained that most of the 3-acre lots on Arch Road were created when land was much less expensive and added that there are many over-sized lots in Avon that were configured in the 1930s, 1940s, and 1950s. Mr. Carvalho noted his understanding. Mr. Kushner stated that all the modern subdivisions from 1957 on comply, for the most part, with the requirement for rear lots in the R40 zone to contain 80,000 square feet.
Mrs. Primeau commented that the rear lots on Arch Road have been built in the last 10 years.
Ken Girardin, 177 Arch Road, commented that the Town is trying to tell him that Avon doesn’t have a 3-acre minimum rear lot on the books right now. Mr. Kushner and Ms. Keith confirmed that that is correct. Mr. Girardin asked what the minimum is for a rear lot. Mr. Kushner explained that there are 4 different residential zoning districts and noted that the subject property is located in an R40 zone. The “40” stands for 40,000 square feet; there is 43,560 SF in one acre. A rear lot, in accordance with the Zoning Regulations, requires twice the land area of the front lot requirement, thus a rear lot in the R40 zone requires at least 80,000 SF. He explained that the RU2A zone (many on Avon Mountain off of Waterville Road) is a 2-acre minimum zoning district; a rear lot in
this zone requires a minimum of 4 acres. He further explained that there are 2 other residential zones, R15 (15,000 SF minimum - 30,000 SF for rear lot) and R30 (30,000 SF minimum - 60,000 SF for rear lot) but added that there is no zone in Avon where 3 acres is required for a rear lot.
Audrey Palmer, 178 Arch Road, noted that she lives across the street from the subject lot. She asked if 2 different driveways are proposed. Ed Ferrigno commented that each house wants its own driveway. In response to Ms. Palmer’s questions about the proposed driveway locations, Mr. Denno showed her the drawing pointing out the driveways.
In response to Mr. Carvalho’s questions, Mr. Denno explained that there would be some extra soil that results from digging for the new foundation but noted that there would be very little change to the existing drainage/topo patterns in the area. He added that the proposed house would be between 2,600 SF and 2,800 SF and contain 2 stories and a 2-car garage.
Ms. Keith commented that some of the fill coming out for the new foundation would be put back into the old foundation. Mr. Denno concurred and added that the ground may be raised approximately 1.5 feet around the new foundation.
In response to Mr. Mahoney’s questions, Mr. Kushner explained that the frontage on this site does not conform to today’s requirement of 170 feet but noted that this is an existing condition and there is a house on the lot. He commented that if the house were to remain, the property owner could present to the Commission a special permit application requesting to create one rear lot. The applicant would have to request a waiver for access to the rear lot via an easement over the front lot, as there is not enough land area to be able to deed any to the rear lot. Mr. Kushner commented that he feels this is a reasonable scenario/request. Mr. Denno noted that the owner could leave the existing house as is and just renovate it and then sell it. Mr. Kushner explained that no land can be
conveyed out for an access, as that would increase the existing nonconformity; he added that the only available option is to serve the rear lot via an easement. He pointed out that the decision comes down to whether the Commission is comfortable granting this waiver. He noted that there have been a few problems with easements for rear lots but added that it is not a large number. He explained that in the vast majority of cases involving shared driveways there have not been problems but in the few instances where there have been problems, they have been severe. When the rear lot regulations were being discussed/amended in 2008, the Commission noted that some of the remaining land in Town is challenging and may have steep slopes, grading, and wetland issues.
Ms. Keith noted her agreement with Mr. Kushner in that the rear lot regulations were changed due to the challenging issues (steep slopes, curves, etc.) with the remaining undeveloped land in Town.
In response to Mrs. Primeau’s question, Mr. Kushner explained that he doesn’t believe the subject rear lot could own the driveway access in any scenario, as there is only 165 feet of frontage. He indicated that if the lot had 170 feet of frontage there would be no discussion about nonconformities, as it would be a conforming lot under the current Regulations, but the owner still could not forfeit 30 feet for the access because then the lot would become nonconforming.
In response to questions from the audience, Mr. Kushner explained that the new house, on the front lot, must comply with the current Regulations for setbacks and the location of wells and septic systems. He pointed out that the physical shape of the lot is not changing in the front; the frontage has existed at 165 feet for more than 50 years. He noted that if a new lot was being created today, the frontage requirement is 170 feet in the R40 zone. He explained that there are lots in Town that contain as little as 5,000 or 10,000 SF (Secret Lake, for example) that have existed that way for many years before zoning was adopted. He explained that property owners have, in some cases, torn down old cabins and cottages and replaced them with brand new buildings. The lot is protected because it has
existed for many years but when the owner wants to construct a new building they must comply with all the current Regulations, such as yard setbacks.
In response to additional comments from the audience, Ms. Keith explained/clarified that there is one set of rules for the land and one set of rules for houses. The land requirements are being met and are conforming; the new house proposed to be constructed (once the existing house is torn down) is governed by a different set of rules.
Mr. Kushner explained that if the subject lot were too small, say 30,000 SF, it could not be divided at all. The lot is 3.8 acres, proposes one rear lot, and leaves a parcel of land that contains almost twice the land area (79,000 SF) required in the R40 zone.
Mr. Mahoney motioned to continue the public hearing for App. #4591 to the next meeting, scheduled for March 27. The motion, seconded by Mrs. Primeau, received unanimous approval.
The public hearing was closed.
PLANNING AND ZONING COMMISSION MEETING
NEW APPLICATION
App. #4593 - Avon Water Company, owner/applicant, request for Site Plan Approval to install emergency generator, 14 West Main Street, Parcel 4540014, in a CS Zone.
Present to represent this application were Robert Wesneski and Kevin Schwabe, Avon Water Company.
Mr. Wesneski displayed a map of the site and explained that the proposal is to install a generator behind the building at 14 West Main Street; he noted that the area to the rear of the building is completely asphalted. He commented that bollards would be located around the generator, which would be placed on a concrete pad and tested once a week.
In response to Ms. Keith’s questions, Mr. Wesneski explained that the size would be up to 20kw, which is slightly larger than a residential generator. He indicated that it would be tested for half an hour at lunch time on Wednesdays; he noted that it generates about 60 decibels, which is about the limit at the property line. He added that the generator is “critically silenced” and noted that special mufflers would be installed.
In response to Mr. Cappello’s question, Mr. Wesneski noted that testing would occur during the week and not conflict with Sunday church services.
Mr. Mahoney motioned to approve App. #4593. The motion, seconded by Mr. Bonner, received unanimous approval.
STAFF APPROVAL
App. #4592 - Fred & Bonnie, LLC, owner/applicant, request for Staff Approval under Section X of Avon Zoning Regulations for minor modifications to approved site plan for oil change center, 221 West Main Street, Parcel 4540221, in a CR Zone
Mr. Kushner addressed the proposed oil change center at 221 West Main Street and noted that the existing rear building (formerly Minuteman Press) is proposed to be torn down and a new building constructed. The subject application proposes to demolish the front building and construct a new building, rather than add an addition and renovate the existing building as was originally approved. The overall cumulative square footage for both buildings would remain the same. Mr. Kushner noted that all proposed easements for connections to adjoining properties remain unchanged and the project is essentially the same as was approved originally.
Mr. Kushner acknowledged that while the owner has expressed an interest to begin construction soon, he doesn’t know when building permits would be initiated.
OTHER BUSINESS
Request for 1-year extension - site plan approval for 221 West Main Street - PZC App. #4395
Mrs. Primeau motioned to approve a one-year extension for site plan approval for App. #4395. The motion, seconded by Mr. Cappello, received unanimous approval.
Mr. Mahoney asked how many exceptions have been granted in the past for rear lots. Mr. Kushner noted that the Staff could review rear lot approvals that have occurred since 2008, when the Regulations were amended, and report back at the next meeting; he added that he doesn’t believe that there have been very many.
Ms. Keith commented that she believes that the exceptions that the Commission has made in the past for rear lots were due to the lot severity.
In response to Mr. Mahoney’s question regarding driveway access for rear lots and easement versus deed ownership, Mr. Kushner explained that the Commission cannot, in any instance, create a nonconforming condition; it is not an option. He added that it may be the case that a nonconforming condition where the applicant is requesting a waiver may be a more difficult decision for the Commission to make. Mr. Mahoney conveyed his belief of the importance to review past approval information before decisions are made that could set bad precedents.
Ms. Keith commented that explanations can be attached to waivers that may be granted noting the reasons for the waiver, such as the site conditions were appropriate and not challenging. She added that these types of explanations can take out any worry of precedent setting. Mr. Mahoney noted his understanding and added that he feels more review is better.
In response to comments from Mrs. Primeau and Mr. Mahoney, Mr. Kushner explained that driveways are allowed to be constructed right up to the property line. He added that there are no setbacks for driveway placement and there are many driveways in Town that fit this scenario.
There being no further business, the meeting adjourned at 9:00pm.
Respectfully submitted,
Linda Sadlon, Clerk
LEGAL NOTICE
TOWN OF AVON
At a meeting held on March 6, 2012, the Planning and Zoning Commission of the Town of Avon voted as follows:
App. #4593 - Avon Water Company, owner/applicant, request for Site Plan Approval to install emergency generator, 14 West Main Street, Parcel 4540014, in a CS Zone. APPROVED
In addition, the following applications were withdrawn:
App. #4584 William Deramo, owner/applicant, request for 2-lot Resubdivision, 2.69 acres, 359 West Avon Road, Parcel 4520359, in an R40 Zone WITHDRAWN
App. #4585 William Deramo, owner/applicant, request for Special Exception under Section IV.A.5.of Avon Zoning Regulations to permit waiver of density requirement, 359 West Avon Road, Parcel 4520359, in an R40 Zone WITHDRAWN
Dated at Avon this 7th day of March, 2012. Copy of this notice is on file in the Office of the Town Clerk, Avon Town Hall.
PLANNING AND ZONING COMMISSION
Duane Starr, Chair
Linda Keith, Vice-Chair
LEGAL NOTICE
TOWN OF AVON
The Planning and Zoning Commission of the Town of Avon will hold a Public Hearing on Tuesday, March 27, 2012, at 7:30 P.M. at the Avon Town Hall:
App. #4594 - Old Avon Realty, LLC, owner, Capitol Region Education Council, applicant, request for Special Exception under Section III.H. of Avon Zoning Regulations to permit earth removal, 59 Waterville Road, Parcel 4500059, in an RU2A Zone
All interested persons may appear and be heard and written communications will be received. Applications are available for inspection in Planning and Community Development at the Avon Town Hall. Dated at Avon this 13th day of March, 2012.
PLANNING AND ZONING COMMISSION
Duane Starr, Chair
Linda Keith, Vice-Chair
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