Minutes Regular Meeting Monday, April 7, 2008 at 7:30 p.m. Pasbeshauke Pavilion at Saybrook Point Park 155 College Street Extension |
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I. CALL TO ORDER
Chairman Robert Friedmann called the meeting to order at 7:30 p.m.
II. ROLL CALL
Attendant Members Absent Members
Robert Friedmann, Chairman Carl Garbe, Regular Member
Madeleine Fish, Vice Chairman
Walter Harris, Secretary
Paula Stuart, Regular Member
Geraldine Lewis, Alternate Member
Charles Sohl, Alternate Member
John Duhig, Alternate Member
Attendant Staff
Christina Costa, Zoning Enforcement Officer
Maura Farbotka, Recording Clerk
Alternate Member C. Sohl will be seated for Regular Member C. Garbe.
MOTION to amend the agenda and move item VI before item V; MADE: by W. Harris; SECONDED: by P. Stuart; no discussion on the motion; VOTING IN FAVOR: R. Friedmann, M. Fish, W. Harris, P. Stuart, C. Sohl; OPPOSED: none; ABSTAINING: none; APPROVED: 5-0-0.
III. REGULAR BUSINESS
A. MINUTES
MOTION to approve the minutes of the March 17, 2008 meeting as submitted; MADE: by P. Stuart; SECONDED: by W. Harris; no discussion on the motion; VOTING IN FAVOR: R. Friedmann, W. Harris, P. Stuart, G. Lewis, C. Sohl; OPPOSED: none; ABSTAINING: none; APPROVED: 5-0-0.
B. CORRESPONDENCE
None.
IV. COASTAL SITE PLAN REVIEW APPLICATION
Mr. Duo Dickinson, architect for the project was present. He gave a review of the plans to the commission. The coverage for the property is being reduced. It was noted as pre-existing, non –conforming. There is no garage being built; all mechanicals will be located in the attic. Per ZEO Costa the only item pending is the flood review.
MOTION approve the Coastal Site plan review for 63 Cypress Road, Map 4/Lot 37, Residence A District because it is consistent with all applicable coastal policies, and includes all reasonable measures to mitigate any adverse impact. MADE: by W. Harris; SECONDED: by P. Stuart; VOTING IN FAVOR: R. Friedmann, M. Fish, W. Harris, P. Stuart, C. Sohl; OPPOSED: none; ABSTAINING: none; APPROVED: 5-0-0.
VI. SITE PLAN REVIEW APPLICATION/COASTAL SITE PLAN REVIEW
155 Main Street, Map 37/Lot 12, B-1 Zone, Relocate drive up and modify parking lot.
Applicant: Essex Savings Bank Agent: Stuart Fairbank
Stuart Fairbank of MacDonald Sharpe Associates was present for the applicant. Mr. Fairbank reviewed the site and proposed plans with the commission. This plan would relocate the detached drive up Teller/ATM lane closer to the back of the building. A canopy will be built over the drive thru lane. There will be two additional parking spaces for a total of 13; this includes one handicap space.
This plan results in a decrease in coverage and greatly improves traffic circulation.
The application has been reviewed and approved by the ARB. Mr. Fairbank confirmed there is no other signage applied for.
Chairman Friedmann raised concern over vehicles entering via the drive thru exit.
J. Duhig pointed out the handicap space is directionally incorrect. Discussion held with alternatives to correct. The commission agreed it would be the responsibility of the bank to advise handicap patrons; noting the space is easily accessed entering from Main Street.
Per S. Fairbank, lighting is shielded and fully recessed. The curb cut will remain the same. There will be a decrease in impervious surface, and two new trees will be planted.
MOTION approve the Site Plan Application/Coastal Site plan Review for Essex Savings Bank, 155 main Street, Map 37/Lot 12, B-1 Zone; with the following conditions:
1. The siding on the south elevation of the building will use matching materials
2. All lighting will be shielded and pointing downward so as not to spill onto neighboring properties.
3. “Do not Enter” signs will be placed on the back of the stop signs located at the drive thru exits.
4. No signs are part of this application.
5. Two trees to be planted with a $500 landscaping bond pending 2nd year growth
That it be approved because it is consistent with all applicable coastal policies, and includes all reasonable measures to mitigate any adverse impact. MADE: by R. Friedmann; SECONDED: M. Fish; VOTING IN FAVOR: R. Friedmann, M. Fish, W. Harris, P. Stuart, C. Sohl; OPPOSED: none; ABSTAINING: none; APPROVED: 5-0-0.
V. SITE PLAN REVIEW APPLICATION/COASTAL SITE PLAN REVIEW
(Special Exception Use Application withdrawn 3/17/08)
Construct Gabion Wall along Connecticut River
9 Rivers Edge Road, Map 64/Lot 19, 19-1 Residence AA-3 District
Applicants: David & Betsy Sams & James & Jean Nichols Agent: Gary Sharpe
M. Fish stepped down, and left meeting at 8:10 p.m.
P. Stuart did not listen to the tapes from the 3/3/08 meeting and did not feel qualified to deliberate.
Alternates G. Lewis and J. Duhig will be seated for deliberations.
R. Friedmann noted for the record the two draft resolutions (one approval/one denial) that have been drawn. The referrals received on this application were reviewed.
Chairman Friedmann noted the numerous concerns raised by engineer, G. Jacobson, The Ct. River Gateway Commission, and Consulting Legal Counsel, Eric Knapp.
Discussion held at length regarding if the Gabion wall is considered an Erosion Control Structure, or a retaining wall. Section 58 (Gateway Conservation Zone) of the zoning regulations was reviewed thoroughly, including the riparian buffer area.
W. Harris noted his concern that the presentation by the applicants never provided examples of a successful green gabion wall.
R. Friedmann noted the location of the wall, and that its base does come into contact with the CT River, making the wall a flood erosion control structure.
W. Harris noted the salinity levels were taken at the out flowing time at only a depth of 4 feet. The commission felt a more accurate reading would be from multiple samples taken a multiple depths.
R. Friedmann stated the applicant removed the natural vegetation. Possibly trees could have been saved with a much smaller structure under 6 feet in height.
Charles Sohl questioned alternatives to total removal of the wall, including gradual sloping of lawn, and to re-establish the natural vegetation. J. Duhig raised concerns about the loss of trees if this wall is removed.
R. Friedmann summarized that the regulations have not been met; that the application is not approvable as presented to the commission. He stated there are numerous options and modifications possible other than the green gabion wall that were never provided by the applicant.
MOTION to deny the Site Plan Review Application/Coastal Site Plan Review; Gabion Wall along Ct. River MADE: by W. Harris; SECONDED: by G. Lewis; The motion was read into the record by W. Harris; VOTING IN FAVOR TO ACCEPT THE DENIAL: R. Friedmann, W. Harris, G. Lewis, C. Sohl; OPPOSED: J. Duhig; ABSTAINING: none; APPROVED: 4-1-0.
*Copy of Resolution for Denial attached to these minutes
P. Stuart left meeting at 9:15 p.m.
MOTION to amend the agenda and move item VII to discuss pending application; MADE: by R. Friedmann; SECONDED: by G. Lewis; no discussion on the motion; VOTING IN FAVOR: R. Friedmann, W. Harris, G. Lewis, C. Sohl, J. Duhig; OPPOSED: none; ABSTAINING: none; APPROVED: 5-0-0.
The ZEO and the commission discussed with future applicants an interpretation of the zoning regulations.
VII. OUTDOOR SEATING RENEWALS (Cont’d.)
ZEO Costa reviewed the outdoor seating renewals received since the 03/17/08 meeting
Including:
-Blue Crab Steak House, Bruehwiler’s Café, Dairy Queen, Dunkin Donuts (1635 Boston
Post Rd.), Dunkin Donuts (744 Boston Post Road), Johnny Ads, Paperback Café, Pizza
Palace, Rosemary and Sage, Sal’s Pizza, and Penny Lane Pub.
ZEO questioned number of seating at 40 for the Penny Lane Pub. She will follow up with owners.
VIII. COMMITTEE, REPRESENTATIVE AND STAFF REPORTS
- Stop and Shop will be opening its seasonal greenhouse. Okay for ZEO to handle
administratively.
- ZEO Costa gave an update on the continuing efforts with regard to signage.
- Sugarplums to relocate at James Gallery.
- On 4/26 the OSHS will host the hot air balloon demonstration for students which will be presented by Remax.
- ZEO recently attended a sign seminar. Advised commission of the City of Groton’s initiative.
- Coastal Sewing Machines, North Main Street. Owners are looking to add dormer to expand very small office space. Pictures/plans reviewed by Commission. Okay for ZEO to handle administratively.
- ZEO updated the Commission on recent enforcement actions.
IX. ADJOURNMENT
Chairman Friedmann adjourned at 9:50 p.m. until the next regularly scheduled meeting
to be held on Monday, April 21, 2008 at the Pasbeshauke Pavilion at Saybrook Point
Park, 155 College Street Extension at 7:30 p.m.
Respectively submitted:
Maura Farbotka
Recording Clerk
Zoning Commission of the Town of Old Saybrook
RESOLUTION FOR DENIAL
OF THE APPLICATION FOR SITE PLAN
AND COASTAL AREA MANAGEMENT PERMIT APPLICATION
Application of David and Betsy Sams/James and Jean Nichols - Gabion Wall
Applicant: David and Betsy Sams/James and Jean Nichols
9/11 River Edge Road. Assessor’s Map 64 / Lot 64-19, Residence AA-3 District
WHEREAS, the Old Saybrook Zoning Commission (“Commission”) received at its Regular Meeting of February 4, 2008, from David & Betsy Sams and James and Jean Nichols (“Applicant”) the following applications: (1) an Application for Approval of a Special Exception use (“Special Permit Application”); (2) an Application for Approval of Site Plan and Certificate of Zoning Compliance (“Site Plan Application”) and (3) an Application for Municipal Coastal Site Plan Review (“Coastal Site Plan Application”) . The accompanying statement of use described the applications as an attempt to obtain permits for an existing gabion wall along the easterly side of the Sams’ parcel;
WHEREAS, the Commission received revisions to the Application materials and plans, as depicted and described by the public record of the administrative proceedings of the Application;
WHEREAS, the Zoning Regulations of the Town of Old Saybrook, Connecticut and Title 8, Chapter 124 of the Connecticut General Statutes authorizes the Commission to act upon an Application;
WHEREAS, the Commission held Public Hearings on the Application on March 3, 2008, and March 17, 2008;
WHEREAS, during such public hearings, the Commission conferred with and received information from the Applicant and/or representatives and the public, and the Commission received technical and legal review from its staff, from additional consultants engaged pursuant to Ordinance 71, and from other Town and State agencies and officials, and the Commission had the opportunity to ask questions and evaluate the Application at duly noticed Public Hearings and public meetings;
WHEREAS, the Commission received correspondence dated March 3, 2008, from Brian Thompson, Director of the Office of Long Island Sound Programs for the Department of Environmental Protection, which correspondence set forth detailed reasons why the Office of Long Island Sound Programs was opposed to the granting of the permits sought, and attaching Department of Environmental Protection, Office of Adjudications’ final decision on the appeal of the DEP’s removal order for the gabion wall.
WHEREAS, the Commission received correspondence dated March 4, 2008, from the Connecticut River Gateway Commission, which correspondence set forth the Gateway Commission’s findings regarding the gabion wall and its consistency with the Gateway standards;
WHEREAS, during the March 17, 2008 public hearing, the Applicant’s counsel explicitly withdrew the Applicant’s Special Permit Application; and
WHEREAS, the Commission has heard evidence regarding the consistency of the Application with the Coastal Management Act, Conn. Gen. Stats. § 22a-90 to 22a-112, and Section 59 of the Regulations.
MOTION TO DENY
Application of David & Betsy Sams and James & Jean Nichols
for Gabion Wall at 9/11 River Edge Road
The Zoning Commission of the Town of Old Saybrook (the “Commission”) makes the following findings based on the record before it:
Coastal Site Plan Application from the Applicant, which has stated that the location of the gabion wall is on the property of David & Betsy Sams, and James & Jean Nichols, who own these properties.
1. The Commission has reviewed the correspondence submitted by the Department of Environmental Protection, Office of Long Island Sound Programs dated March 3, 2008.
a. The Commission agrees with the DEP that the gabion wall is presently in violation of a Removal Order issued by the DEP, as well as a cease and desist order issued by the Zoning Enforcement Officer, Christina Costa.
b. While the Commission finds that it does have jurisdiction over the entire wall, it is sensitive to the position of the DEP, which has overlapping jurisdiction over at least a portion of the wall.
c. The Commission has reviewed the analysis provided by the DEP regarding both the Coastal Area Management Act and the Gateway Conservation Zone, and finds these analyses persuasive, as set forth in greater detail below.
d. The Commission finds that the granting of this Permit would act as a validation of prior invalid actions taken by the Applicants, and would undercut any remedy which could be achieved through the enforcement action presently being undertaken by the Zoning Enforcement Officer, Christina Costa.
2. The Commission has reviewed the testimony of Gary Sharpe, P.E., regarding whether the Sams’ property qualifies as a “coastal bluff or escarpment”. The Commission has also reviewed the Final Decision prepared by the Office of Adjudications of the Department of Environmental Protection dated November 2, 2007. The Commission agrees with the conclusions of the Hearing Officer, Jean Dellamarggio, that the wall is a coastal bluff or escarpment as the term is defined by Conn. Gen. Stats. § 22a-93 (7). The definition as set forth in Conn. Gen. Stats. § 22a-93 (7) does not limit coastal bluffs or escarpments just to those which have been
previously identified on a 1979 DEP Coastal Resource Map. The definition: “naturally eroding shorelands marked by dynamic escarpments or sea cliffs which have slope angles and constitute an intricate adjustment between erosion, substrate, drainage and degree of plant cover” accurately described the area now covered by the existing gabion wall. As noted by the Hearing Officer, “(t)he record provides ample evidence to establish that the site of the seawall is adjacent to coastal waters and demonstrates all of the characteristics of a coastal bluff and escarpment.”
3. The Commission has reviewed the letter dated February 15, 2007, prepared by Geoffrey Jacobson, of Jacobson & Associates, the Commission’s consulting engineer. Specifically, the Commission has analyzed the discussion set forth by Mr. Jacobson regarding whether the gabion wall is a flood control structure, as that term is defined in Conn. Gen. Stats. § 22a-109(c). The conclusions set forth in the Jacobson letter are that “based on a review of the three photographs in item 7 above, our site inspection, and a review of available soils mapping, it would be our opinion that the cause of the erosion would most likely be a result of tidal and wave action, and
seasonal flood waters.” The letter then gives several reasons supporting this finding. The Commission finds the conclusions of its consulting engineer to be credible and finds, therefore, that the purpose of the gabion wall is for “shoreline flood and erosion control” as defined in Conn. Gen. Stats. § 22a-109(c). As a flood and erosion control structure, it would require a special exception pursuant to Section 58.6.1 of the Regulations. The Special Exception Permit having been withdrawn by the Applicant, the Commission is unable to act upon it.
4. The Commission has reviewed the testimony of Gary Sharpe, P.E. and the legal arguments set forth in the correspondence from Jeffrey Mirman, Esq. dated March 17, 2008, regarding whether the gabion wall was unavoidable and necessary for the protection of infrastructural facilities and water dependent uses. The Commission compares this evidence against the discussion provided by the Office of Long Island Sound Programs in its March 3, 2008 letter and the findings of the Hearing Officer in her November 2, 2007 decision. While these analyses are relevant only to the now-withdrawn Special Exception Permit application, the Commission does nevertheless find that the statements by the
Office of Long Island Sound Programs are more credible.
a. Conn. Gen. Stats. § 22a-92(b)(2)(A) requires that the Commission “discourage uses which do not permit continued natural rates of erosion and disapprove uses . . . alter essential patterns and supply of sediments to the littoral transport system.” The armoring of a section of the River cuts the supply of sand to the adjacent beach, and disrupted the ongoing process by which the slope would have reached a natural equilibrium.
b. Conn. Gen. Stats. § 22a-92(b)(2)(J) requires that engineering solutions only be used as a last resort, and to protect infrastructural facilities. As the nearest infrastructure is the Sams’ house, some 300' away and at no risk of loss (and as noted by the DEP, pursuant to Conn. Gen. Stats. § 22a-93(16), residences are not a water-dependent use in any event), the wall was not placed there for the statutorily-stated purpose. It is also clear that allowing the area to reach its natural repose slope would be a feasible and prudent alternative and would have cost nothing.
5. As the activities proposed by the Applicant require a special exception and there is none presently before the Commission, the Commission is unable to act upon the merits of the Site Plan Application. The Site Plan Application, whatever its merits, fails absent the required special exception.
6. The Commission finds that the placement of a gabion wall, even a “green” gabion wall, is inconsistent with the Gateway standards, in that it is inconsistent with the “traditional character of the riverway scene. (Section 58.8.1).
7. While the gabion wall may keep the form of a bluff, it does not do so in a manner which “maintains the essentially natural characteristics of the site”. (Section 58.8.2).
8. The gabion wall structure does not “adept to the existing terrain rather than the earth altered to create a platformed development site.” As everyone agrees, the alternative to the wall is a more gently-sloped terrain, and the wall preserve in perpetuity the condition of the existing “platform” at this location. (Section 58.8.3).
9. While the wall does preserve eight trees at its top, it is far from clear that all eight will remain in place even with the wall there. Additionally, the preservation of these eight trees has come at a high price of eliminating the natural functioning of this bluff for ecological purposes. The Applicant may be planting native species, but that does not mean that the gabion wall, with its in-ground irrigation system, is preserving the existing vegetation. (Section 58.8.9).
10. The gabion wall fails the requirement that cut and fill slopes “reflect the forms or shapes of the surrounding topography as closely as possible.” The wall, by its form creates an “abrupt angular intersection of manufactured and natural slope face” in violation of Section 58.8.10.
11. Shoreline and erosion control structures have not been minimized to the greatest extent possible. (Section 58.8.11).
Specifically based on the findings set forth above, the Commission DENIES this application.
Dated at Old Saybrook, Connecticut, this 7th day of April, 2008.
OLD SAYBROOK ZONING COMMISSION
By:
Robert Friedmann, Chairman
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