OLD LYME PLANNING COMMISSION
PUBLIC HEARING AND REGULAR MEETING
THURSDAY, APRIL 9, 2009
PRESENT WERE: Chairman Harold Thompson, Vice Chairman Robert McCarthy, Steve Ross, Connie Kastelowitz and Alternates Robert Pierson and Steve Martino.
PUBLIC HEARING
Mr. Tony Hendriks, Registered Professional Land Surveyor, agent for the applicant presented the Schaefer Resubdivision to the commission. Hendriks noted this proposal has been revised several times and feels this current revision meets the requirement of both the subdivision and zoning regulations. Hendriks stated the only outstanding issue is whether the existing house that has been there since 1956 which contains an accessory apartment is required to meet the 160,000 sq. ft. lot size. Hendriks noted that Dr. Schaefer has provided the commission with a letter dated March 24, 2009 outlining the status of the home.
Thompson asked Mr. Hendriks if he had discussed this issue with Mr. Rowley since the last meeting in March. Hendriks stated he had been in contact with Mr. Rowley. Thompson stated the commission discussed this item in detail at the last meeting. Thompson noted that Mr. Rowley asked if the issue of the one or two family dwelling could be waived by this commission. Thompson further stated at that time the commission told Mr. Rowley that he needed to resolve this issue with zoning prior to any approvals granted by the Planning Commission.
Ernie Schaefer stated that his parents purchased the property and then constructed a home on that parcel in 1956. He stated the house remains essentially in the same form it is was built at that time. Schaefer noted he tried to describe the home in his letter to the commission.
Ross noted that Mr. Hendriks has described this property in his opening statements to the commission as an accessory apartment, duplex and a multi-family and therefore the status of the property needs to be clarified. Ross stated the Dr. Schaefer’s description is very clear and there is not an application for a duplex, multi- family or an accessory apartment and we believe that this is a single family home as it was constructed. He further stated he does not think our zoning regulations state that a single family residence cannot have
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two kitchens or three or four baths and the applicant is not applying for any of that. Thompson stated he has discussed this issue with Ann Brown and also reviewed the sections of the regulations and he is not convinced this property is a two family. Ross asked if there was a separate means of entrance and egress to the second floor. Schaefer stated there are two entrances. Ross stated unless the applicant is a applying for an accessory apartment they do not have one. Thompson stated that determination is not with the commission. Thompson read Ann Brown’s letter dated April 7, 2009 to the Planning Commission into the record. Hendriks stated this is strictly a single family home with some conveniences for family members in an isolated area. Schaefer stated if this
home had really been a two-family he and his wife would not have bought the home around the corner. Thompson stated the Planning Commission receives input from staff and at this point and that indicates this property does not currently comply.
Hendriks stated his client has an application for a division of property into three lots and a waiver request has been submitted for the open space and therefore asked for direction from the commission as to how the applicant can satisfy this issue.
Attorney Cassella asked how long this property had been in its current configuration. Schaefer stated it has not changed since it was built in 1956. He stated the only change has been to a convert the one car garage into a room. Cassella asked how the property was taxed. Schaefer stated as far as he new he was being taxed for a single family dwelling.
Chris Kerr reviewed the vision appraisal document which indicated this was being taxed as two-family dwelling. Kerr further stated this may be where Ann Brown has obtained her information determining this residence to be a two family dwelling. Kerr also suggested that Ann Brown visit the site. The commission agreed that this issue needed to be resolved with Zoning.
Thompson asked if the grading easements that were noted in Mr. Metcalf’s letter dated April 6, 2009 to the commission had been resolved. Hendriks indicated that this item was all set.
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Thompson asked Mr. Hendriks how he has addressed the open space issue. Hendriks stated the applicant has requested a waiver with respect to the fact that it is a family trying to reconcile the property. Thompson stated that Attorney Cassella’s letter to the commission states that the applicant shall file a Declaration on the Land Records in a form that is approved by the commission’s counsel designating that each of the subdivision lots shall be conveyed to the family members listed in the General Statutes 8-25.
Harold Thompson made a motion to close the public hearing. Chris Kerr seconded the motion. The motion passed unanimously.
PROPOSED AMENDMENT TO THE OLD LYME SUBDIVISON REGULATIONS – ADDITION OF SECTION 3.9.4. CONDITIONAL APPROVAL
Thompson stated the commission received comments on the proposal from both the Zoning Commission, Inland Wetlands Commission and counsel for those commissions. Thompson reviewed the comments from the Zoning Commission. He stated they suggested that Section 8-25 (a) be referenced for the amount of the fine rather than giving an actual dollar amount. Thompson stated he felt that was a good point because if the regulations are automatically updated then it is something the commission does not have to worry about.
Kerr stated the commission also discussed the wording with regard to the successive renewal periods. Thompson stated this commission’s intent was to establish a time frame that was reasonable and still be able to monitor the progress of the developer for successive periods after that.
Cassella stated he reviewed the statute to see if there is such a requirement that only one extension can be granted which appears to be what the zoning commission is stating in their comments. Cassella stated the language is very broad and hinges on the determination of what “and” means. He stated as a matter of much broader impact that Planning Commissions for the most part can require stricter standards than are provided for in Section 8-25. He stated the legislature set forth what they think is a good scheme but then says go ahead and make it tougher if you so desire. Cassella also noted that this commission reviewed the language from several other towns that have had this language in practice and have used it so therefore the commission needs to decide how much time they actually
want to give the applicant to be able to do this conditional approval before requiring the bond or completing the improvements. He stated he felt any period of time within ten years as long as it is clearly stated and easy to understand in the body of the regulations would be enforceable. Kerr stated it appears the zoning commission would like an expiration date or a ten year maximum. Cassella stated this provides for ten years
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until you get the final approval and then five years and you can get an additional five years after that.
Ross stated he does not agree with zoning’s interpretation. He stated they are looking at the statute as designating rather than guiding and therefore as long as we don’t exceed ten years and there is at least one extension we are within the guidelines the statute represents. Cassella stated the rational behind the additional extensions is that the commission wants to be updated morer than once every five years as to what is happening with the development.
McCarthy asked if the language does really mean three successive renewal periods which can be interpreted as twelve years. Cassella stated it is three, and then two and two. McCarthy stated the zoning commission does also point out it could turn into a twenty year span and is that a concern to this commission. Thompson stated he would not think the development would stay viable for twenty years without any progress at the site. Ross stated that the approval from conditional approval to final approval requires some action and therefore they only have ten years to do nothing. Cassella stated they do not have ten years they have the amount of time that is granted by this commission. Kerr stated that Branse indicated that conditional approvals could actually give the town more protection
during these economics than any bond. He further stated he agreed with the request of the Zoning Commission with regard to not providing an actual dollar amount.
Cassella suggested the wording “shall be fined not more than $500.00 or the maximum amount set forth under CGS 8-25 a. The commission agreed.
Thompson asked the commission about the time span with regard to conditional approvals. Cassella stated the and/or he knows in practice that a lot of times at the end of the conditional approval the developers will like the option of doing some of the work and posting a bond when they convert it to final approval because the bond amount is less because some of the improvements have been completed so that is where the “and/or” came from. He stated more of his understanding of what practices is that the statute does say “or” …again it is a question of who is going to challenge if you give developers the option of completing 75 percent of the work and post a bond for 25 percent because under the “or” language they would have to either post a bond or do the work.
Therefore that is why he feels the “and/or” makes it a little more clear that this is an option that this commission would consider.
Ross stated he felt Attorney Cassella did a good job in drafting the language and feels that it reflects the discussions and intent of the commission.
Steve Ross made a motion to close the public hearing. Robert McCarthy seconded the motion. The motion passed unanimously.
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REGULAR MEETING
SUBDIVISION – EDWARD AND LINDA MARSH – 8 LOTS – 81 MILE CREEK ROAD
Thompson stated he had received some unsolicited information concerning open space and to eliminate any possible appearance of conflict he recused himself from this agenda item. He further stated that Rob McCarthy will be seated in his place as chair for this item. Thompson then left the meeting.
Pierson stated he had read through the Harbor Management Commission minutes and it appears Mr. Ross has had an extensive working relationship with Marcy Balint, DEP, Office of Long Island Sound Programs. Pierson stated that email correspondence indicated that Mr. Ross had invited Marcy Balint to the last meeting of the commission. He also noted at that last meeting Mr. Ross handed her a note prior to her leaving the meeting. Therefore, he stated all of this information gives the perception of a conflict on this agenda item and expressed concerns over that issue due to the sensitivity of this subject matter he wanted to bring this to Mr. Ross’s attention.
Mr. Ross stated the note passed in the meeting was requesting the name and email address of the new representative from the DEP for dock standards in Old Lyme. Ross stated in an effort to avoid any sense of conflict, however he does not believe that any conflict exists because of all his workings with Marcy Balint has been with matters that are unrelated to this application, he will recuse himself if that is what the commission feels would be appropriate.
Pierson stated in a prior case, Mr. McCarthy’s family had dealings that caused the perception of a conflict with him and when it was presented to him he recused himself from that matter. Pierson stated for the protection of the commission he felt it was important to address the issue.
Ross stated it is open knowledge from the beginning that he is on the Harbor Management Commission. He further stated that Harbor Management deals with water access, so if that is a conflict with any application where there is a CAM application required then he should have recused himself in the past. Ross stated he would handle this any way the commission desired. Ross asked Attorney Cassella for his opinion on the matter. Cassella stated his recommendation on all matters that involve the appearance of conflicts of interest is to be conservative. He stated he has had this conversation with other members of the commission in the past and will have it in the future but there needs to be some sort of basis as to what that influence is and he really leaves it up to the member unless it is
glaring to make the determination. He further stated he thinks the individuals input who is involved in the conflict of interest potentially is one of the most
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controlling. He also noted that it is not always an objective standard but his sense is always to be conservative and if the member is even tending to lean toward recusing himself than he would suggest he do so. Ross stated he was concerned as to whether he should or not because if he should it probably should have been done at the first public hearing. Ross asked how does this would affect prior and future application when there is any water access. McCarthy stated this particular application has a higher level of interest from DEP’s perspective with Marcy Balint’s involvement and that is what is raising the level of interest and that is the one factor of concern that he shared with Mr. Pierson. Pierson stated this is the reason the commission has
alternates so these situations can be easily avoided. Cassella any concern about prior participation in the hearing process can be eliminated by that person recusing themselves before the deliberation process begins. Cassella stated this commission is a public board subject to ethics and conflict of interest rules. Ross stated he was completely open about working with the DEP as part of Harbor Management and he further stated he did not feel there was a conflict here but if it makes the commission uncomfortable he will recuse himself.
Pierson stated he raised the issue because of concern of putting the commission in jeopardy should this application go to appeal. Ross stated he did not understand what the perceived conflict is on this item. Pierson stated the minutes appear to indicate a relationship as well as the email indicated she was invited by Mr. Ross to attend the March meeting. Ross stated it was his recollection that Balint was not able to attend the first meeting and he told her that he could not make her presentation and if she wanted to make she needed to attend. Ross stated it was not his role to present something for DEP. Ross stated Balint submitted a letter at the first meeting and requested that it be read into the record and the commission noted on the record that they had all read it and therefore it was
not necessary to be read aloud. Ross also noted that he asked the public if anyone wanted it read into the record and also offered to make copies available. He further noted that when Balint read the minutes she wanted to continue to pursue this situation and Ross told her she would need to attend the meeting in order to accomplish that, because the commission was not going to present her material. Pierson expressed concern of the perception of someone on the outside reviewing the matter. Ross stated he did not see a conflict.
Robert McCarthy stated it was Mr. Ross’s decision. Cassella asked Mr. Ross if he had any conversations with Balint outside of the process concerning the application. Ross stated he did not, in fact he specifically stated to her that he cannot discuss this issue outside of the public hearing and Balint did not ask either. Casella asked what the context was of the email and how it came about. Ross stated that Balint had told him that she sent a letter to the commission and was asking that he make sure it was read into the record in its entirety. He noted he did not read it into the record. Cassella asked how this email came to the commission. Ross stated he forwarded the email. Groves noted that
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all correspondence to her becomes party of the file. Ross stated it was unclear why Balint sent the email to him other than the fact he told her that she needed to attend the meeting if she wanted the information presented. Cassella asked Mr. Ross if he discussed this application with Balint at any other meetings. Ross stated he had not met with her since this application was received. Cassella asked other members how they felt about the issue.
Kerr stated he felt it should be Mr. Ross’s decision because only he knows what happened. Kerr stated that if there was any grey area he would step aside on the issue to avoid putting the board in any jeopardy. Kastelowitz stated she was not present at the beginning of the hearing process but she would certainly be inclined to say there is something wrong here. Cassella asked Kastelowitz why she felt that way. Kastelowitz stated she felt it was fairly obvious that something is not right. Ross stated if it was obvious to everyone then why hasn’t each other person expressed that same concern. Ross further noted that Kastelowtiz was not present for the first hearing. Kastelowitz stated she admitted that at the beginning of her statements. Ross asked how she could be
positive that there was something wrong. Kastelowitz stated she was basing it on the information shared on this issue that she was not privy to. Ross stated he felt there was an impropriety on that statement.
Ross recused himself from this agenda item and left the meeting.
Alternate Martino expressed concern about the commission not trusting one another. He stated this was his first meeting and all the members need to be ethical. Cassella stated it is not whether there is a conflict it is whether it is an appearance of a conflict. Cassella stated this might be a minor situation but when it crosses the appearance line it can be enough to create a problem.
Pierson stated the commission has had similar situations in the past where there have been appearances of conflict when the members feels they are perfectly fine but when confronted they have recused themselves from the application. Discussion ensued about problems being perceived due to relationships, contacts, correspondence or conversations that is where the issue of appearance rises and public trust can be diminished.
Robert McCarthy seated Bob Pierson for Connie Kastelowitz for the Marsh Subdivision due to the fact she was not present at the first public hearing on this subject matter.
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Robert McCarthy discussed the two letters there were in the record at the time of the last meeting but were not necessarily presented at that time. McCarthy asked the commission if they were familiar with the letters to the commission from Robert L. Doane, P.E. dated March 12, 2009 and Diana Atwood Johnson dated February 19, 2009. McCarthy stated that the Open Space Committee met with Bob Doane and the conclusion was that they requested that the Planning Commission approve the subdivision with the currently proposed conservation easement on Lot 5. In addition, the applicant has agreed that as part of the approval, it be stipulated and written on the mylars that if and when the owners of Lot 17 decide to subdivide the 17 acre parcel, any subdivision approval would require another 15% set aside for open
space along with the balance of the 15% (approximately 2 acres) that was expected in this application.
McCarthy stated that Bob Doane’s letter stated that he was not authorized by Edward and Linda Marsh to commit to specific amounts of additional open space. Doane further stated it is the intent of the Marsh’s to maintain the 17 acre lot as farm land, and would like the option to wait and discuss open space requirements if and when a resubdivision application is ever submitted.
Chris Kerr stated he was content with the 12.6 acres. He stated it is all family land to be divided amongst family members for their children and grandchildren. He stated this parcel could be divided into more lots than is currently being proposed. He stated if the Marsh’s resubdivide the 17 acres then they will be subject to the regulations at that time, but he felt the current open space proposed was adequate.
Pierson stated he felt the proposal was a low density subdivision. He also noted that the 15 percent is not a requirement but a guide for the Planning Commission to use in their approval process. He also noted the proposal is for family and therefore felt the 12.6 percent of open space was more than generous for this circumstance.
McCarthy also stated that the farmland being kept as one large lot also contributed to the intent of the regulations. McCarthy stated the other issue before the commission is the car top access.
Kerr stated he was totally against imposing this access. He stated there is access on the river, he noted he did make an error when he spoke about the parcel behind the old Buttonball pit. He stated it was given to the state, however the state gave back it to the town in 2002, but noted it still does have public access and can be used for kayaks. Kerr stated that the state is in the process of selling Seaside which consists of 30 acres on Long Island Sound with 2,900 front feet of water. He stated if the state wants access to the water they should keep Seaside instead of taking two acres from property owners in the back waters in Old Lyme.
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Pierson stated he concurs with Mr. Kerr. He stated he does not understand why the state would put up a wonderful piece of access for the public and turnaround and ask for land from a subdivision. Pierson stated there is access at Heflon Farms, Buttonball Pit, Smith Neck Landing, Town Landing not including the paid accesses and therefore feels there is sufficient access.
Pierson stated he felt that Ms. Balint gave the impression that there was no access available and was not aware of some of the accesses already available in town.
Cassella stated the applicant indicated that the majority of the lots would be given to family and asked if the commission would like some assurances to that and therefore he drafted as part of the conditions of approval a condition that satisfies that if the commission determines that necessary.
Cassella stated that with regard to open space the statute reads “the open space requirements of this section shall not apply to transfer of land that is less than five parcels to family members”. Cassella stated it does not go on to say what type of restrictions there are going forward …..so if you give it to a family member and they sell it…..I don’t think the commission has any control over that. Kerr stated that is their choice. He stated it is their inheritance….some people have trust funds and some people have land.
McCarthy asked if Mr. Metcalf was satisfied with the proposal. Metcalf requested a 50’ vegetative buffer. Cassella stated there was a condition in the motion, that requested the applicant comply with the conditions stated in Metcalf’s letter to the commission.
Cassella stated he drafted a motion to approve with some conditions and asked the members to review Items 4 and 5 and to confirm they are consistent with the commission’s discussions and intent. Cassella asked to confirm they had read the motion. The commission read and reviewed the motion and felt the motion addressed the commission’s desires. The commission decided it was not necessary to file a declaration on the land records at the time of recording designating which lots are to be conveyed to family members.
The application for subdivision was presented to the Planning Commission on January 8, 2009 and the Commission held public hearings on February 11, 2009 and March 12, 2009.
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The Commission has reviewed the information and materials submitted with the application and during the public hearing. Based upon the information and materials submitted as well as the statements of the applicant, referrals and testimony from the Department of Environmental Protection, and the testimony of the members of the public in support of and in opposition of the subdivision, the Commission makes the following findings:
1. The application is consistent with the goals and policies set forth in the Town Plan of Conservation and Development, in that the application protects natural and coastal resources, preserves open spaces, and maintains the scenic rural character of the property by concentrating the intensity of the development on the southern portion of the lot and reserving a conservation easement area along the Black Hall River.
2. The application meets the policies set forth in Section 1.2 of the Subdivision Regulations by providing proper regard for open spaces and protecting the natural beauty and topography of the town, including the scenic features, wetlands, watercourses and coastal areas.
3. The application meeting the requirements of the Subdivision Regulations.
4. The coastal site plan, which has been reviewed un Section 4.5.4 of the Subdivision Regulations is consistent with the goals and policies of the Coastal Management Act, General Statutes 22a-90, et seq. in that application minimizes adverse impacts on natural coastal resources, preserves tidal wetlands and prevents despoliation and destruction thereof, regulates and use and development in a manner which minimizes adverse impacts upon adjacent coastal systems and resources.
5. Allowing the development of residential homes and the continuation of the existing farm does not create any unacceptable adverse impacts on potential water dependent uses because there are other areas of public access on the Black Hall River and on Smith Neck Road and because the are is not suitable for water dependent uses because of the steep grade adjacent to the public right of way.
6. The proposed reservation of a conservation easement of 6.78 acres (12.6% of the total subdivision) is sufficient under Section 5.10 due to the representations made by the applicant tha a minimum of five (5) lots will be conveyed to the family members and that Lot 8, consisting of 17.5 acres will continued to be used as farm.
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Based upon the above findings, Robert McCarthy made a motion to grant approval to the subdivision known as Subdivision of Edward and Linda marsh, as shown on the plans titled, “Subdivision of Land of Edward G. and Linda B. Marsh, Mile Creek Road & Buttonball Road, Old Lyme, Connecticut” dated April 28, 2008, with revisions through February 2, 2009, prepared by Doane-Collins Engineering & Associates, LLC, with the following modifications/conditions
1. All required legal documents, including but not limited to Conservation Easement, and Common Driveway easement, agreement and association declaration in a form acceptable to the Commission’s counsel. All easements and declarations shall be filed simultaneously with the filing of the Mylar or at another time as approved by the Commission’s counsel. If applicable, a Certificate of Title shall be provided for all warranty deeds and easements establishing that there are no encumbrances other than standard utility easements.
2. The applicant must post bonds in amounts as determined by the Town Engineer in the forms acceptable to the Commission’s counsel.
3. The applicant comply with the terms of the letter from Thomas E. Metcalf, P.E., L.S. dated March 11, 2009. Robert Pierson seconded the motion. The motion carried unanimously.
Chris Kerr made a motion to amend the agenda to discuss Item 3 prior to Item 2. Robert Pierson seconded the motion. The motion passed unanimously.
REFERRAL OF PROPOSED AMENDMENT TO THE OLD LYME ZONING REGULATIONS – APPLICANT: OSPREY LANDING, LLC – ADDITION OF SECTION 12.9.1 – PRCD DENSITY INCENTIVE
Cassella stated this proposal is for an amendment to the PRCD language which is in the Zoning Regulations, however the applications are required to be determined and approved by the Planning Commission. Cassella stated it was his understanding that this proposal was with regard to Cherrystones Restaurant. Cassella stated the proposal allows for more buildings to be built on the property which increases the density by eliminating some of the standards that are currently in the PRCD regulations. He noted he did not have any comments on what they are trying to achieve but he does have some thoughts on how it has been written and how it will be interpreted.
He stated they are trying to create an available density discount in certain circumstances which is a fine planning method but has to be done in such a way that there are attainable standards. For example the commission will allow a density discount where there is access to public water because then there is no need for wells and septic systems on the
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parcel or the soils are suitable for septic. He noted some of the standards such as “suitable access and proximity to public highways” he felt might not be appropriate.
The commission agreed to ask the Zoning Commission to hold their hearing open to allow them some additional time to discuss the standards proposed and provide comments. The commission also asked to review the minutes from the Zoning Commission meeting where this proposal will be presented.
MUNICIPAL REFERRAL – CGS SECTION 8-24 – CONSTRUCTION OF THE BUS BARN FACILITY ON FOUR MILE RIVER ROAD
Ross stated that the Board of Education described the proposal as the town would make the improvements and the BOE would continue to pay the same rent they are currently paying on Jadon Drive until such time as the improvements and operating costs are amortized at which time the rent would drop to slightly above the operating costs. Ross stated ultimately there is no increase to the town budget it is in the school budget.
McCarthy stated the proposed location is more suitable for this type of facility. Ross stated this proposal would take it out of the residential area. Ross also noted the town does not have a dollar figure at this time. The commission stated they were in favor of the proposal.
Ross made a motion to send a letter to the Selectmen indicating the Planning Commission voted unanimously in favor of the proposed bus barn. Chris Kerr seconded the motion. The motion passed unanimously.
SUBDIVISION – DAVID AND MARY W. EKLUND – 312 FERRY ROAD – 9 LOTS.
Harold Thompson made a motion to receive the application and set it for public hearing for the May meeting. Connie Kastelowitz seconded the motion. The motion passed unanimously. The commission set a site walk for Thursday, April 23, 2009 at 5:00 p.m.
SUBDIVISION – MATTHEW AND SANDRA MACDONALD – 155-1 BOSTON POST ROAD – 2 LOTS
Harold Thompson made a motion to receive the application and set it for public hearing for the May meeting. Connie Kastelowitz seconded the motion. The motion passed unanimously.
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SUBDIVISION – ESTATE OF VIRGINIA MARIE PETERSEN – 125 NECK ROAD
Harold Thompson made a motion to receive the application and set it for public hearing for the May meeting. Connie Kastelowtiz seconded the motion. The motion passed unanimously.
READING AND APPROVAL OF THE MARCH 12TH, 2009 MINUTES.
Steve Ross made a motion to waive the reading of the minutes and approve them as submitted. Chris Kerr seconded the motion. The motion passed unanimously.
Respectfully submitted,
Kim Groves
Land Use Administrator
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