OLD LYME PLANNING COMMISSION
PUBLIC HEARING AND REGULAR MEETING
THURSDAY, MARCH 12, 2009
PRESENT WERE: Harold Thompson, Robert McCarthy, Steve Ross, Sean Mulligan, Chris Kerr, Connie Kastelowitz, and Alternate Robert Pierson. Also present were: Attorney Cassella, Attorney William Bouregy, Lee Rowley, Kevin Kenny, Marcy Balint and Kim Groves.
PUBLIC HEARING
SUBDIVISION – EDWARD & LINDA MARSH – 8 LOTS – 81 MILE CREEK ROAD
Robert Pierson was seated for the Public Hearing.
Thompson stated the public hearing was held open to receive additional comments from staff. He noted the commission received a letter from Thomas E. Metcalf dated March 11, 2009 with his review the of the revised set of plans from Doane-Collins Engineering dated February 2, 2009. Thompson reported that Metcalf indicated that the revised plans satisfactorily address his previous comments.
Thompson stated Metcalf suggested that the Record Subdivision Plan and Site Development Plan show the 50 ft. “vegetative buffer area” extending from the wetlands as required in Section 4.10.6 of the Zoning Regulations. Thompson stated that has not yet been depicted on the map but the applicant will have this completed prior to the next meeting. Thompson also reviewed the remaining items in Metcalf’s letter with the commission.
Thompson also reported that the commission received a memo from Ann Brown, Zoning and Wetlands Enforcement Officer dated March 12, 2009 indicating that the subdivision complies with the zoning regulations and has also received approval from the Inland Wetlands and Watercourses Commission.
Thompson noted that one of the items being discussed were the Coastal Site Plan Review comments on the proposed subdivision from the Office of Long Island Sound Program. He stated that one of the issues raised was the access to the river and he noted that since their last meeting a drawing has been submitted by staff to the commission indicating that a town landing exists at the intersection of the Black Hall River and Mile Creek Road.
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Thompson reviewed the existing access areas in the vicinity noting that there is already significant access available to that river.
Steve Ross stated that since the last meeting the commission received a letter from the Connecticut River Gateway Commission regarding the subdivision. The commission member confirmed that they have received and read this letter.
Pierson noted that the access to the Marsh property is fairly steep and entry in and out of the area could cause quite a bit of erosion. Ross stated there is a flat area located on the west side where cars have been currently parking. Ross also noted that according to the map there appears to be at least 40 ft from the road edge to the property line, which is a town right-of-away, however, it has a deep swale.
William Bouregy, attorney for the applicant, stated he was in contact with Mr. Doane today and as far as the suggestions made by Mr. Metcalf are concerned, the applicant agreed to those suggestions.
Marcy Balint, Senior Coastal Planner, with the Office of Long Island Sound, stated she was aware her comments were submitted formally to the commission last month for the record but she would still like to present them to the commission. She further noted that they (DEP) regulate all activity below the high tide line. Balint stated that this subdivision is a non-water dependent use for the Coastal Management Act. She also noted that she had reviewed a very similar project to this that was proposed in October at which time comments were offered by her office and is very concerned that no attempt has been made by the applicant to revise or address the Coastal Management Act provisions for the water dependent use. She stated this project is located on the Black Hall River with almost 4,000 linear feet
of frontage. She further stated that based on their review they find this project to be inconsistent with the Coastal Management Act. Balint stated because this parcel is located on the waterfront and is subject to the relevant statutes of the Coastal Management Act, which states “through existing uses in coastal boundaries municipal planning, zoning and other local regulatory authorities shall give highest priority and preference to water dependent uses.” She noted that the statute goes on to define water-dependent uses including access right in the definition. She noted when a non-water dependent use, such as this is proposed at a waterfront site a reviewing board or commission must determine the acceptability of potential adverse impact to possible future water-dependent development activities associated with the proposed development. She reviewed the factors involved when doing the evaluation which define adverse impact to future
water-dependent activities. She stated there are three factors but only one applies in this case and that is that “site is physically suited for water-dependent use for which there is a reasonable demand or has been identified in the Plan of Development or Zoning Regulations for water-dependent use.” Balint stated if that
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condition is applied, the residential development would therefore preclude future development of water-dependent uses in the form of public access. Balint stated that once it is developed that is it. She stated this site does not appear to be suitable for an active water dependent use in her opinion based on the location. However, based on their site inspection the site does appear to be ideally suited for public access for coastal scenic viewing and walking trails on the open space conservation area with car top access areas as well. Balint stated that there are no public car top launches on the Black Hall River which is approximately three to four miles from one end to another.
Kerr asked what Balint meant by car top access. Balint stated for public use with no fee. Kerr stated there is car top access located at the end of Buttonball Pit with a boat launch. Balint stated down at the creek. Kerr stated that it is off Buttonball and there is boat access with a ramp. He stated that Bill McGowan donated this property to the state approximately 35 years ago.
Balint asked if that was for residents only. Kerr stated it was public and it was donated to the State of Connecticut. Kerr stated that there is parking for at least eight cars at the site. Balint stated she was unaware of this and it was not noted on her public access guide.
Pierson stated this site has been there as long as he can remember. Balint stated that this information was never provided. Thompson asked how the information is provided to the Office of Long Island Sound. Balint stated that there is a public access guide on the State DEP website and there are mailings sent to the town periodically requesting that all public facilities be noted. Thompson asked what group was responsible for providing this information. Balint stated the information is obtained from whoever they can get it from. Ross stated he just had a conversation with regard to the website and there are items that are not listed. Balint noted that the State’s website has only been in existence for 4 or 5 years. Balint stated she was happy to hear that this access
was available. She also noted that her department has received calls asking for additional sites at the Black Hall specifically and recent surveys have indicated a high demand for access. Balint stated she stood corrected because she had no idea that this area was open because they rely on the information that is given to them periodically by the towns. She stated she is not saying that this would necessarily be enough to satisfy the statutory requirements because of the demand.
Ross also noted that there is a car top launch north of Smith Neck. Balint stated that was on Great Neck Road. Ross stated it was located on Town Landing Road. Ross stated there is adequate parking there and good footing out to the water.
Kerr asked how much access is needed to satisfy the criteria and noted there are several access areas within a ¼ mile. The commission reviewed the 5 access locations
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in the area on a map. Balint once again stated she stood corrected on the fact that she was unaware of the location off Buttonball Rd..
Balint stated the burden is on the applicant to show that they have either met the statutory required criteria or not and the burden is on the commission to make sure they have gone through this type of evaluation.. She noted many of the small top car launches have two or three gravel spaces with signage provided by the DEP for a nominal fee by the applicant and some other minimal improvements.
Balint suggested that the commission take serious consideration to make the applicant consider doing this amenity for the Town of Old Lyme. Balint noted the commission is within their power to require public access as a provision of their approval when necessary and appropriate.
Balint stated if the board does see pushing the applicant to provide access she would also recommend that they establish public parking spaces and public access signs be placed and that all areas be subject to an easement granted to the town or be deed restricted in some way even if it ends up being on a town right-of-way area or town land or private land.
Balint commended the applicant for largely complying with the 50 ft and 100 ft tidal wetland and Gateways standard setback. She also noted that she supported the Gateway’s comments and noted that their comments were support of the Coastal Review. Balint also stated that she recognized the applicant probably could have put more houses on the property but she appreciated the fact that the lots have been laid out to provided a significant area to allow for the infiltration of storm water.
Kerr stated that Balint indicated that the access would be primarily for the town’s people. Balint stated it could not be restricted to only town’s people. Kerr stated so this access would be open to the public. Balint stated that was correct and no fee would be charged.
Attorney William Bouregy, attorney for the applicant, stated that the applicant is really maintaining the existing character of the land and he felt the prospect of public access would be a threat to the environment because of there is a lot of wetlands and there is really no way to control its use. He further stated there are also concerns of the security of the residents that will live on the property because the homes are very spread out and the prospect of people walking through is an item of concern with no real way to supervise. Attorney Bouregy stated the town could recognize that there are sufficient points of access and therefore it would not be necessary to require this level of change to the applicant’s plan.
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Harold Thompson made a motion to close the public hearing. Steve Ross seconded the motion. The motion passed unanimously.
RESUBDIVISON – H. MICHAEL SCHAEFFER ET AL – 136 NECK ROAD
Connie Kastelowitz will be seated for the public hearing.
Lee Rowley, agent for the applicant, stated that the commission had received comments dated March 11, 2009 from Thomas E. Metcalf. The commission noted the most recent plans received by the commission are revised through February 11, 2009.
Rowley stated that the letter the commission received from Mr. Metcalf dated March 11, 2009 is basically reiterating his prior comments.
Thompson stated that Comment #2 states that it appears that the existing overhead utility lines that service the existing dwelling will remain. However, with the division of the land, portions of the overhead utilities will cross adjacent created lots and this should be addressed with appropriate easements. Rowley stated when CLP brings lines in they acquire the rights. Thompson stated that the commission will need the necessary documentation to support that item.
Attorney Cassella stated he has been in touch with the applicant’s attorney, Fran Sablone, concerning easements on the property and some of the other necessary documents. Cassella further stated the question is about the MABL requirement in light of the existing easement if there is one. He further noted he has not seen the easement. Thompson stated this issue needed to be resolved.
Thompson stated that Ann Brown raised the comment in her memo to the commission dated February 11, 2009 stating that the zoning regulations require in Section 8.8.2 a minimum of 80,000 square feet of lot area for each dwelling unit. Thompson stated that one house is considered to be a two-family, therefore would require 160,000 square feet. Thompson stated that in order to resolve this issue the applicant needs to convince Ann Brown that the existing structure is satisfied by an accessory apartment or it is a single structure that only needs to be R-80. Rowley asked if this item needed to be resolved prior to the Planning Commission rendering a decision. Thompson stated that this commission does not have the authority to waive the zoning regulations and therefore it needs to be
resolved prior to any decision.
Cassella stated that the commission still has time to keep the public hearing open and to the extent that new evidence is going to be introduced concerning what is exactly on the site he recommended that the applicant grant the commission a 35day extension to
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continue the public hearing until the April meeting. Lee Rowley granted the commission a 35-day extension in writing.
Robert McCarthy asked if the open space issue has been addressed. Rowley agreed to provide the necessary documentation indicating that the open space requirements have been met. Cassella agreed to discuss this issue with Attorney Sablone.
Harold Thompson made a motion to continue the public hearing. Robert McCarthy seconded the motion. The motion passed unanimously.
Harold Thompson made a motion to propose to amend the agenda to move the Proposed Zoning Amendment to the next item on the agenda. Chris Kerr seconded the motion. The motion passed unanimously.
ZONING REFERRAL – PROPOSED AMENDMENT FOR NEW SCHOOL DISTRICT
John Rhodes, Director of Facilities for Regional School District 18, introduced Attorney Ken Slater who is representing the school district on the proposed amendment change.
Thompson stated the proposal is to incorporate the three school zones into one zone. Attorney Slater stated that for prior applications submitted by the school district variances were required because the school campus is broken up into three different zones.
Slater stated the last time the school had applications before both the Zoning Commission and the Zoning Board of Appeals it became clear that this situation should be fixed. He stated they approached the Zoning Commission on what their recommendation would be to rectify the situation. He stated the Zoning Commission suggested a zone be designed for schools, which could be used in this location and else where in the town. Therefore, zoning regulations have been drafted to accomplish that along with a map to reflect the change. Slater stated the new zone would not change the uses that are allowed on the property by Special Permit from the Zoning Commission, therefore the zoning commission would still have discretion. Slater also stated with regard to the Plan of Conservation and Development
there was nothing documented that deals specifically with this issue, but there was also was not anything inconsistent with the proposal either. He further stated it does state that there have to be school improvements.
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Thompson asked how this proposal was developed. Slater stated when the zoning commission stated they would like to see it as a separate zone they took the template for some of the separate zones that are now in the zoning regulations as a basic format. He stated they also looked at other areas in the state.
Ross asked if this amendment were to be approved does the Mile Creek School property conform to this district and would a zone change be required for that property. Rhodes stated the 10 acre minimum was designed around the Mile Creek property. Ross stated then the answer is yes. Rhodes stated that was correct.
Pierson stated that he noticed the setbacks are reduced and he would think that the neighbors of a school would be concerned with that issue and he really feels a larger setback should be provided. Pierson stated as the land mass increases the setback should increase but the setbacks in this proposal for the R-80 are reduced. Kerr stated the high school is currently R-80 and they are adjusting it down and he feels it should be the same if not more. Pierson stated out of respect to the neighbors he felt it should remain at 50 feet for any new improvements. Kerr stated once again he felt the setbacks should be the same or greater than the current R-80 zone setbacks. Slater reviewed the current setbacks with the commission and understood the commission’s request was to increase all
the setbacks by 5 ft. Kerr stated this would keep it consistent with the R-80 zoning.
Kerr asked if there was lighting proposed for the site. Rhodes stated this is in the regulations as a comment they received from the zoning commission. Rhodes stated there are currently no plans for lighting. Attorney Slater stated this reference was made with regard to the parking area.
Steve Ross made a motion to indicate to the Zoning Commission that the Planning Commission is in favor of the proposed school district with the modification of the setbacks listed in 7, 8, 9 and 10 each to be increased by 5 ft. Kerr seconded the motion. The motion passed unanimously.
SUBDIVISION – ENOK PEDERSEN – 16 LOTS – BURR ROAD
Thompson stated this is basically a review of a prior approval granted by this commission on this subdivision. He noted this new proposal eliminates one lot.
Sean Mulligan asked about the off-site improvements. Thompson stated they included an off-site culvert and the installation of a fire pond. Thompson stated if the commission approves this application they should require that the off-site improvements be completed prior to construction.
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Steve Ross made a motion to approved the subdivision application with the condition that the off-site improvements be included in the initial bonding and the fire pond suction pipe be installed as well as the culvert prior to any other construction. Connie Kastelowitz seconded the motion. The motion passed unanimously.
WOODCREST AND SOUTH LYME ESTATES – REQUEST FOR RELEASE OF THE INTEREST ACCRUED ON THE BONDS POSTED FOR THE SUBDIVISION
Kevin Kenny, one of the principles of Kenwood, LLC the developer of Wood Crest Estates and also a partner in Flanders 161, LLC the developers of South Lyme Estates was present to address the commission. He stated he made a request for the accrued interest for the bonds being held by the Town of Old Lyme in the amount of $2,354.49. He stated it is currently three months later so he requested that if the commission acted favorably on his request, the interest accrued in the additional months of December, January and February be added to that total.
Thompson stated it has not been the practice of this commission to release the interest other than your prior request. Steve Ross stated this commission did release interest once prior for this developer, however the commission has not ever done it for any others.
Thompson stated there are also currently outstanding fees due to the Town of Old Lyme for inspections done at the site for this development. Kenny stated this was not a part of his request but he would like to discuss these invoices. He noted he received two invoices one for Wood Crest Estates and one for South Lyme Estates. Mr. Kenny stated the Wood Crest Estates invoice sites services in September and October a total of 4 services plus postage. He stated that in his discussions with Ann Brown she came to the conclusion it would be best to arrange a joint site inspection with Tom Metcalf and himself at the site for the issue that he inquired about. He noted he had completed his work on the subdivision improvements around September of 2006. He stated his partner made the decision to
complete the private road, which is about 600 ft long, and he requested Mr. Metcalf’s input prior to paving to be sure nothing else would need to be done. Kenny stated he was very specific in his request to be present with Mr. Metcalf at the site inspection but he was not notified and therefore the inspection at the site included items beyond his request. Therefore, he feels he should not be charged for these items and would like the bill revised.
Kenny stated on South Lyme Estates, he made an inquiry subsequent to Wood Crest Estates which he felt was being handled strictly by Ann Brown. He didn’t realize that Mr. Metcalf would be brought into the issue and if she had advised him of that he
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probably would of held off on that inspection. Kenny stated this is a three lot subdivision, one of which contains the existing house, and in his opinion all the work had been completed. He stated this request would require only a very cursory inspection since there were only two things that needed to be completed, i.e. a shared driveway and the overhead utilities removed and installed underground. He further indicated he was very surprised that Mr. Metcalf was brought in without his knowledge and didn’t understand how this would generate a higher bill than the more substantial subdivision of Wood Crest Estates.
Therefore, in his opinion he felt he had discussed his issues very specifically with both Ann Brown and Tom Metcalf on Wood Crest Estates to avoid any confusion and a mistake has been made and therefore he does not feel he should be charged for it. He further stated he was very surprised at the amount of the bill for South Lyme Estates and that Mr. Metcalf was even involved in the inspection.
Kenny stated he received copies of the bills three weeks ago. He stated he discussed the invoices with Ann Brown as well as what happened at last month’s meeting of the Planning Commission. He further stated he would like to see a further breakdown of what work was done at the site along with a report of his findings at the site.
Ross suggested that the commission give Mr. Kenny the opportunity to research the bills and table any action until the next meeting. Mr. Kenny stated he did not feel it was his responsibility to do the research. Ross suggested that he discuss his complaints with Ann Brown. Kenny asked if the commission received a report on either subdivision. Groves stated she could not recall what was in the file back to November. She further stated that if Tom Metcalf inspected the site she was sure that there was documentation to that effect. Ross stated this commission was not in a position to respond to any of his challenges to the bill and that has to be done with either Ann Brown or Mr. Metcalf. Thompson stated that Ann Brown does not come to the commission if she requests Mr.
Metcalf’s expertise in the field that is her part of her authority to make those judgments.
Kenny stated it was recommended by Ann Brown that he be present at the meeting. He further stated that whatever is resolved, Kenwood, LLC will pay the bills. He further stated it is a difficult market and he would appreciate the board releasing the accrued interest to the end of the February. Thompson stated he would be willing to release the interest minus the amount due on the invoices. Kenny stated the commission would be collecting full payment on bills that he is disputing. Discussion ensued. Ross stated the precedent of this commission is to not release any interest and to break that precedent and release a portion of the interest is being more than cooperative.
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Kevin Kenny stated this is a very difficult economy. He further stated he would modify his request to ask that the interest be released through the February statement less the two invoices.
Ross stated while he has no reason to disagree with doing it he feels that the commission should state that this is being done as a special circumstance and not establishing a precedent for this developer or other developers in releasing bond interest. Ross asked that this be noted for the record that this is a special accommodation for this instance only and not to be considered a standard practice.
Harold Thompson made a motion to release the interest on the bond through February 28, 2009 less the amount of the two invoices. Steve Ross seconded the motion. The motion passed unanimously.
DOUGHERTY SUBDIVISION – REVIEW OF SUBDIVISION APPLICATION
Thompson stated the commission approved this subdivision previously on January 2008 and the mylars were misplaced so the request is to re-approve the subdivision.
Harold Thompson made a motion to approve the Dougherty Subdivision in the same form it was approved in January 2008. Steve Ross seconded the motion. The motion passed unanimously.
REVIEW OF DRAFT LANGUAGE FOR “CONDITIONAL APPROVAL” TO BE ADDED TO THE OLD LYME SUBDIVISION REGULATIONS.
Thompson stated he had discussed the proposal with Attorney Cassella today. He noted the whole point of this “conditional approval” is to allow filing the mylars prior to any work being preformed and it also allows three years before a bond is required. Thompson stated in discussions he had with Tom Metcalf he was concerned that a portion of this wording was in duplication of Section 3.11 and might create some confusion as to which regulation they are dealing with. The commission reviewed the language. Pierson stated the language appears to be exactly what the commission discussed. McCarthy stated the language appears to do what it is intended to do. Ross stated he felt the regulation was simple and clear. Discussion ensued and the commission agreed the language was
satisfactory and covered the items raised in the workshop meeting.
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Thompson made a motion set the proposed language for public hearing. Steve Ross seconded the motion. The motion passed unanimously.
READING AND APPROVAL OF THE FEBURARY 11TH AND FEBRUARY 26TH MINUTES.
Steve Ross made a motion to waive the reading and approve the minutes as submitted. Chris Kerr seconded the motion. The motion passed unanimously.
Respectfully submitted,
Kim Groves
Land Use Administrator
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