OLD LYME PLANNING COMMISSION
PUBLIC HEARING AND REGULAR MEETING
THURSDAY, MARCH 3, 2011
PRESENT WERE: Harold Thompson, Robert McCarthy, Chris Kerr, Steven Ross, and Alternates Don Willis and Todd Machnik.
Harold Thompson seated Alternate Don Willis for Regular Member Stephen Martino.
Thompson made a motion to amend the agenda to discuss the Referral of the Proposed Amendment prior to the Public Hearing. Chris Kerr seconded the motion. The motion passed unanimously.
REFERRAL OF PROPOSED REGULATION AMENDMENT – To replace existing Table 11.19A.3 with the attached proposed Table 11.19A.3 with respect to Section 11.9 Seasonal Use of the Old Lyme Zoning Regulations.
Ken Slater, Attorney for the South Lyme Property Owners Association was present to discuss the proposed amendment referral. Slater stated he felt this was a very unusual referral and it would be the first time he would suggest to a commission that they punt on this one. He stated this commissions position would be to evaluate whether this amendment is consistent with the Plan of Conservation and Development in the role of planning functions. He stated at as a result of litigation in federal court the system that was being used to determine how someone is recognized as a non-conforming use was determined to be unconstitutional an ultimately that regulation was settled. He stated as part of the settlement the regulation would determine who qualifies and how the town determines someone has a
non-conforming use.
He stated this matter is about part and parcel to that settlement. It was recognized that members of the South Lyme Property Owners Association were qualified for year-round use on the Registry of non-conforming use. He stated at the time of legal discussions there was a list of members of the association that was distributed. The settlement did not actually occur until three years later and at that time settlement recognized that members of the association would qualify if they filed registrations under a new system of regulations that were going to be adopted.
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He further noted at the time of settlement the Planning Commission was not a party to any of that action which is another reason why it would be very difficult for this commission to make a recommendation one way or another in terms of list of persons who were going to be recognized or not under zoning. The 2005 list was not current as of the settlement date which was a couple of years later. He stated counsel that was involved in the case new that as well as the zoning enforcement officer. He stated they requested the updated list at that time but the list was still evolving because property owners were selling their properties and so a current list was being maintained. He stated members were not joining the association and were not allowed to join after the settlement but the list was being amended,
corrected, and there were some errors in the 2005 list so when the time came for the deadline for registration in September a corrected list was filed and it was expected that the town would just replace the list. He stated again the Zoning Commission’s attorney was of the mind that the list is actually the same as a regulation itself and we disagree. He stated we don’t think it’s a regulation we think it is a list of our members and those members were entitled under the regulations to qualify for that status. He stated we discussed a potential Hold Still Agreement where persons who are on the corrected list would not be denied until an application was submitted that we would agree and preserve our rights to file this application treating this list as if it were a zoning regulation. He stated they do not feel it is but are willing to make that application and the zoning enforcement officer would have a year from the deadline on September 30th, 2010 to determine whether or not
anybody who files a registration whether that registration would be challenged or not. He stated ultimately we did not end up with a stand still so the South Lyme Property Owners Association filed suit which is currently pending in the state court asking for an injunction for the court to order that the list be corrected and be replaced since the 2005 list was not current at the time of the settlement.
Slater stated at the meeting before the Zoning Commission in a couple of weeks he will ask that the list be corrected. He stated the Zoning Commission was a party to that suit. He stated this list does not implicate this commission in anyway or the Plan of Conservation and Development. He stated if this commission does not make a decision either way in the referral, however they would certainly support a positive referral so the zoning commission is not hamstrung in their voting, therefore they would suggest that no positive or negative referral be made which is treated as a positive referral and does not impact the zoning commission being able to adopt this list.
Ross stated that the settlement of the lawsuit provided rights to the property owner or the property itself. Slater stated the property. Ross stated that the updating up the ownership and addresses is more administrative than legal. Slater stated that the two areas where the Zoning Commission may have the biggest concern.
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Slater stated he prepared four lists to try an outline and describe what the differences are between the old list and the new. Slater stated there are changes in owners. He stated the non-conformity runs with the land so the fact that someone who sold the land so the non-conformity would remain. Ross stated that the rights went with the land and not the owner because if it was reversed it would present a much more complicated issue.
Slater the two areas that the Zoning Commission has asked for clarification on is there are a few address changes where the address such as a post office box was used rather than the property and Colony Road was actually Old Colony Road and things like that. He further stated there are four instances in which the actual physical address from the time the 2005 list to the current list has changed. He stated two of those property owners actually sold an R-10 property and purchased one by the time of the settlement and served that the non-conforming rights be with the new property. So one property dropped off and the other one came on. He also noted that in two other instances there was just an error one a property was referenced as Sea View and it was actually Seaspray and the other one was the
mailing address of Dimitri Tolchinsky. He further stated there are about 20 properties that were brand new that were not referenced at all on the 2005 list and that is because when settlement negotiations were started we were still soliciting the members and by the time the case was settled there were additional 20 plus persons who joined. He also noted during that time frame 20 plus people resigned membership. He stated the total number of person that would potentially have benefitted by the lawsuit was really the same plus or minus. Slater once again stated this was a zoning function and not your typical planning referral.
Thompson thanked Attorney Slater for attending. He further stated the reason the commission had requested his attendance was because this issue became before the commission and the members felt they needed additional information. Thompson stated the commission requested the changes that were made in the list from 2005 to 2008. Slater stated the list was not approved in 2008. Thompson stated it was agreed to. Slater stated it was not. Slater stated that list was handed to the commission in negotiations that failed. Slater stated by the time the settlement was reached a list was not exchanged and it was understood that the list was not current at that time. Slater stated this commission was not party to any of that. He stated there is no change from the moment of the
settlement the list that we would propose to submit other than new owners. He stated he would continue to track new owners and new owners were put on the list. He stated when he submitted the list in September it reflected the current owners but there was no change from the terms of the settlement and we believe that they are actually legally required to accept that list.
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He stated if the Zoning Commission does not approved this we will have to go back to court and enforce the federal settlement.
Cassella asked when the list was adopted for the zoning regulations? Slater stated he does not feel the list is a regulation but to the extent it is it was last year.
Groves explained to the commission that currently the staff doing the determinations on the Registration Process is using the 2005 list. Slater stated if an individual is a member of the association at the time of the settlement the R-10 property that they own and asserted a non-conforming right to was a different property than it was in 2005. Thompson stated this commission receives a referral which requires this commission to render a non-binding yes or no or no position at all he would like to know what he is approving or not approving. Therefore, he would like to know what was agreed to or changed and does the change make a significant difference. Thompson stated that the Plan of Conservation and Development does discuss retaining the character of the town of Old Lyme including the beach
community and so forth and this could change that character.
Ross asked what the intent was of the settlement. What was the intent of the parties at the time of settlement? He stated it seemed improbable to him that the intent of the parties was to not correct incorrect streets address or to not update property ownership. He stated it was probably clearly also the intent to not transfer rights from one property to another so when he reviewed the lists it becomes pretty clear that if the intent of both parties was to establish a list that correctly identifies the members to the settlement and correctly identifies their ownership and their address then corrections to achieve that should not be a problem. The two properties that were mentioned where there is an issue of transferring a right from one property to another he felt should be excluded from the
referral because that was not within the intent of the parties at the time of settlement. Slater stated that was incorrect actually and that is what the problem is with this matter is that this commission is guessing because you were not part of the process and what the intent of the settlement was and he was there and negotiated and it and that was at the date of the settlement recognized that our members and properties in the R-10 zone by our members would qualify for a non-conforming use. He further stated that the two particular properties under discussion are that everyone in the room knew that the list that had been transmitted three years earlier was not current. He also stated that those two people on the list properties on the corrected list that was the property they owned on the date of the settlement that they were asserting a right to. He further stated there was no list that day that said this is the list the deal was our members who own the
R-10 property.
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Slater stated the ones that might be most troubling to the zoning commission are the 20 plus names and property addresses that were not members the very first day that settlement discussions were had and at that point the towns offer was that our two named plaintiffs’ out of 400 people (he corrected himself by stating 3 named plaintiffs’) would be qualified as a non-conforming use and that was the proposal to settle the case. He then stated obviously that did not settle the case and obviously the legal battle continued and in that interim several years there was change in the membership.
Slater said the Planning Commission has to guess what the settlement was all about and what was there and just cannot simply know if there were any substantive changes from the settlement. He further stated it doesn’t really have any planning implications and in his position when he gives advise to commissions he represents in some instances to make no decision because it really isn’t something that they feel as though they have the tools to really give an answer to in which case the planning referral doesn’t result in the potential penalty to the zoning commission of requiring the two thirds vote of all members and they just state on the record that they don’t have the information that they are able to actually make a knowing positive or negative referral on this issue. He stated
he really thinks as members of a commission that were not party to that settlement and don’t have a way to understand the details of that he doesn’t see how this commission could make a positive or negative recommendation.
Kerr asked when the court settlement came down they awarded 400 property address and now 20 people pulled off and 20 new locations are no. Slater said no. He stated if we were to assume that the 2005 list that was sitting in the court room the day we received the proposal that we accept 3 people out of 400 if that is are settlement then you are right then all those things changed but that is not what happened. He stated years went by from the point in time that the first list went on so the date of that settlement those two properties were owned by members in good standing of the association. Kerr stated Slater was stating members but was the property they owned. Slater said there was no list of the properties.
Groves asked if this new list would be different than what is currently being used. Slater said there was no list at that time. Kerr stated then you are stating that in 2005 400 applicants applied but now we are talking 400 property locations that are going to be deeded or accepted as non-conforming. Slater said we are really talking about 200 plus because the only people who can qualify now are the people who registered. Kerr said that (x) amount was awarded non-conforming status now three years later some of the names have changed, address have changed and there are two more locations added. Slater stated that was incorrect there are actually 27 or 28. Slater said there are no list of properties and this commission was not present and therefore cannot make a recommendation.
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Groves stated we do currently have a list and the new registration process has been using this list to evaluate the properties. Ross stated the attorney’s definition of what list existed or didn’t exist is a defined legal definition. He stated the intent was to use the member list of the South Lyme Property Owners. Slater stated that was correct. Ross stated there was a list of those property owners however there were changes that occurred and errors within the list so while your guidance is appreciated he felt the commission understands that at the time of settlement there was no updated corrected boiler plate list and people were still acting under the previous list that had been submitted knowing that it needed updated. Slater stated that the members were different because
three years had gone by.
Machnik stated it appears to him that we are use to dealing with properties and addresses and he felt the properties don’t have a whole lot to do with it as much as the fact that your name being on the list of people to be registered on the homeowner association and they can pick any property that they want to and keep changing it all the way through as long as they are signed up to be on the list to begin with. Slater stated absolutely not. Machnik stated the Land Use office is working on a list that doesn’t appear to mean anything so why are they working on a list that doesn’t exist. Slater stated that is because they refuse to put the correct list in place. Slater stated after the settlement Ann Brown on several occasions asked for the current list because on the date of the
settlement we talked to counsel and informed them that some of the members had resigned and new members have joined but we are talking about a membership that’s very similar.
Groves asked if the list was adopted as part of our zoning regulations as a table. Cassella stated there is a gap. He asked if the settlement was in 2008 and the regulation came in 2009 and therefore asked why an updated list was not given. Slater said the town took the 2005 list and stuck it. Cassella said a year later. Slater said the town is treating as if it is a regulation. Cassella asked then what was Ann Brown asking for in terms of the updated list. Slater stated he thinks she was asking for what she ultimately got but the town said we can’t put that new list in because its not part of our regulation so the only way we can put the new list in is to treat it as a regulation and file an application. Slater said the new list would have been what we provided in
September. He stated the deadline for filing was at the end of September. Cassella asked if this new list gets adopted to these people get another shot at the registration. Slater said no. Cassella again asked what happens and what is the relevance? Slater because there are properties and errors on the list so the new list gets adopted so persons that are actually members of the association who filed their registries and you just match up the names with who filed. Cassella asked if property owners are given another opportunity if they have not filed a registry. Slater stated that do not get another opportunity.
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Thompson asked how the case could be settled without a list? Slater said he could make an agreement with you that says that the shareholders of your company are all entitled to membership in his gym. He said you do not have to give him a list of your shareholders to make that deal, but somebody has to be a legitimate shareholder at the date of the deal. He said the deal was that the members of the association the R-10 properties if they filed a registration. He said there is no recorded list of the members or the properties.
Thompson stated that Slater said in his opening remarks that this was property specific and now we are saying it is person specific. Slater said the R-10 properties of the persons who are owners in good standing at the time of the settlement. He stated that is the deal and that is deal we will fight for if we are denied that and stuck with the 2005 list. Thompson said this was a list of the shareholders. Slater stated when the case was settled everyone involved in the settlement and the planning commission was not but everyone involved new that the list we were working on was a three year old list and it wasn’t current. Slater stated that the only substantive changes are the 20 plus persons who joined and the 20 plus persons who resigned and the two persons who properties at the time of
the settlement owned a different property.
Robert McCarthy stated he felt it was a technical issue and way beyond anything that the Planning Commission could make a decision on. Willis concurred with McCarthy. Cassella stated that the Planning Commission could render a report to the Zoning Commission with the issues and questions raised at this meeting. He further stated that the Planning Commission does not have to take a side but the commission could certainly report to the Zoning Commission any of its concerns. Cassella stated if the report is neutral it would be deemed as an approval but it is an opportunity as Planning Commission members to provide the Zoning Commission with the commission’s thoughts. Perhaps the list could include that you would like the two property owners clarified, make sure that the 20 plus
persons were members at the time of the settlement but had changed properties.
McCarthy stated he did not understand the term “members” when you are talking about a list that should be structured based on properties. Members do not mean anything to him.
Cassella stated there was a settlement reached in 2008. Everybody who owned a property, that property was then grandfathered. Cassella stated so the members on that day is the relevant properties. Slater stated if this list gets adopted it is only these properties.
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Ross stated the example of shareholders and gym membership brings to mind a simple analogy. He stated when a corporation declares a dividend it is as of a certain date includes the shareholders in that class as of that date. Ross stated the list that should be reflected in this settlement should include the properties that qualify as of the settlement date. He further stated that list of properties should be updated to include the current owner names and correct any clerical errors. He further stated he really does not see why this commission should take a middle of the road position on this. He stated the town has spent tens of thousands of dollars on this and to go to court and argue about updating a list is ludicrous to him. Ross stated it is his opinion to make a referral to the
Zoning Commission that they adopt the amendment using a list of the properties at time of settlement. Cassella added owned by the members at time of settlement. Thompson stated it seems like a shell game to him. Ross stated at the last meeting we asked Attorney Slater to give us the changes. Thompson stated not in the form we have received them. Thompson stated he thought there would be a first list and a second list and the changes could be evaluated.
McCarthy stated he felt it would be helpful to get the Zoning Commission’s perspective on this matter. He felt at this point this commission was only getting one side of the story.
Chris Kerr made a motion that the Planning Commission takes no action but submit a list to zoning. Robert McCarthy seconded the motion.
Discussion:
Steve Ross stated he did not feel the commission should do that. He stated he felt the commission has enough information to render an opinion on a referral basis because it is not binding. Thompson stated this commission’s vote does impact the zoning commission’s vote. Thompson stated he felt we could take no position and submit a list of questions about the other properties. Ross stated he would propose a motion that we indicate that they should adopt a list of the qualified properties whose owners had membership at the time of settlement. He stated that will be the accurate list.
McCarthy stated ultimately an agreement will be reached on the list and it will get submitted. He stated he really felt that this commission does not understand the dates, the timeframes, difference lists and members.
Kerr stated we could take no action and suggest that they iron out the list.
Thompson asked Kerr if he would like to amend his motion. Kerr agreed that they could put comments and a list of questions. Ross stated he was uncomfortable voting on that amendment when the questions are not specified.
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Thomspon suggested we specify the questions and/or comments. Thompson stated that the Planning Commission should indicate that they adopt a list of qualified properties at the time of settlement. Ross added whose owners were members. Kerr stated he did not like the word members. He stated it should run with the property location. Ross stated that they had to be a member for that property. Machnik stated they had to pay to be on the list so membership is your entry. Cassella stated you can take a snap shot of what properties the members own and those are the properties. Kerr stated whatever member owned the property at the time. Kerr now they are saying it transferred from 2005 to 2008 so the 2005 list isn’t accurate because by the time the settlement came along
some members changed.
Slater said he has no concerns if this commission just focuses on the fact that the properties should be identified that was subject to the settlement. He stated he did not feel this commission should get tangled up in the membership.
Thompson stated the motion on the floor is that the commission take no action and it can be amended to include a list of questions. Ross asked if they would consider withdrawing the motion and making the motion that we recommend that they adopt the list of properties that qualified at the time of settlement. Kerr stated he liked the motion to take no action and submit a list of questions or comments saying requesting they review locations.
Kerr amended his motion to take no action and submit the following question/comment that the adopted list should be qualified properties at the time settlement. Rob McCarthy seconded the motion. The motion passed unanimously.
SUBDIVISION – Richard M. & Donna D. Battalino – 160 Mile Creek Road
Tony Hendriks, Registered Professional Land Surveyor, was present to represent the Battalino subdivision. Hendriks submitted the proof of mailing receipts. He also noted he had not received proof of mailing from Carol Van Patten. He stated when he started this initial project he thought the proposal would be a boundary line modification, however after reviewing the entire property it was determined that the parcel was divided previously without subdivision approval. He stated that they have been shown on the assessor’s records as three parcels (Lot 67, 68, & 69). He stated subsequently Lot 68 became into the ownership of Mr. Battalino’s mother and the other two lots came into the ownership of Mr. VanPatten. He stated Mr. VanPatten entered into an agreement with Mr.
Battalino to purchase one acre of the 1.4 acre parcel. He stated he paid for this property on a time basis and eventually paid the contract off and has litigated with Mrs.
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VanPatten for the ownership and the judge ultimately ordered that the property be transferred to Mr. Battalino. He also noted that all of these deeds are now part of this file including the courts deed.
He stated now Mr. Battalino is proposing to revise the common boundary line between the two parcels to allow this parcel to be large enough to support a house, leaching system and access. Hendriks stated as part of this application we are asking the Planning Commission to approve a revision and the reconfiguration to the rear lot. Thompson asked the size of the new lot. Hendriks stated it was 1.63 acres and the other 5.2 acres. Thompson noted that the rear lot does not change that much in acreage.
Groves asked if this was the same plan that was approved by the Inland Wetlands Commission. Hendriks stated it was except for a couple of minor modifications that were made as a result of Tom Metcalf’s comments.
Hendriks stated as in any boundary line change we have demonstrated this proposal meets the current zoning, planning and health regulations. He stated the proposal shows a new driveway as well as an existing driveway. He stated the IWWC stipulated as part of their approval that one access should be abandoned and the other access would become a common driveway servicing the two lots. He stated Mr. Battalino would be willing to do that if he has to but he really did not want to have a common driveway. Hendriks stated that Mr. VanPatten had a well adjacent to the pond and we have never been able to locate the pipe from the well to the house servicing Mrs. Van Patten’s lot. He said we did eventually dig it up and find it and we have created a 20 ft easement to provide access to that well
but this issue has not yet been resolved.
Hendriks stated therefore we are trying to rectify an illegal subdivision as well as a boundary line clarification and a new driveway to access Mr. Battalino’s property.
Ross stated is the subdivision an issue since there are deeds which reflect the current lots. Hendriks stated the property was divided illegally. Ross stated the deeds exist and are recorded. Hendriks stated that is correct. Cassella stated the plan needs to conform to the subdivision regulations. Hendriks stated also at some point in time the property may transfer and it would be an illegal subdivision, therefore we would like to receive an approval from the Planning Commission that can be recorded on the land records.
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Hendriks stated that Tom Metcalf has not finished his review of the application. He also noted that in his prior review he had some concerns about the driveway location so he has provided him with a sight line demonstration plan. Hendriks noted that he has received a wetlands approval. Ross asked if the approval from the IWWC was to abandon the driveway. Hendriks stated the approval was to abandon the existing driveway and come off the new driveway to service the house.
Thompson asked what had changed on the plan from the prior review of Tom Metcalf. Hendriks stated that there were no substantial changes. He further stated Metcalf requested that the limits of MABL be defined, the stockpile area be relocated, and to identify the well line for the VanPatten property.
Hendriks stated that since the subdivision regulations require 10 percent of open space or a fee in lieu of be provided or a waiver be granted he felt since this parcel has been subdivided since 1967 illegally he would ask that a open space waiver be granted.
Todd Machnick recused himself from the application.
Ross asked for clarification of the wetlands approval. Groves stated there was one condition. Cassella read the motion into the record which included the abandonment of the driveway. Ross stated he just did not want the Planning Commission approval to conflict with their approval. Ross clarified that the application before the commission is with the existing driveway abandoned and a new common driveway. Hendriks stated that was correct at the time of construction. Ross clarified if that changes the application would need to go back to the IWWC. Hendriks stated that was correct. Ross also stated that he did not feel the intent of open space would be served by requiring open space on this subdivision so he would support a waiver of this requirement.
Kerr stated he felt this application cleans up the division and concurred with the waiver of open space. Robert McCarthy and Willis concurred.
Ross made a motion to close the public hearing. Robert McCarthy seconded the motion.
Discussion:
Cassella stated he felt the hearing should be held open in an effort to allow the applicant to provide information to address Mr. Metcalf’s comments. Hendriks asked if this would be staff comments. Cassella felt it would be better to leave open in this particular case.
Harold Thompson stated that based on counsels recommendation he would like to make a motion to continue the public hearing. Robert McCarthy seconded the motion. The motion passed unanimously.
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LOT LINE MODIFICATION – 5 BEAULIEU DRIVE – WESLEY PORIOTOS
Matt White of Angus McDonald & Gary Sharpe Associates was unable to attend the meeting but asked the commission to receive the application.
Chris Kerr made a motion to receive the application. Robert McCarthy seconded the motion. The motion passed unanimously.
READING AND APROVAL OF THE REGULAR MEETING MINUTES DATED FEBRUARY 10, 2011.
Steve Ross made a motion to waive the reading and approve the February 10, 2011 meeting minutes as submitted. Chris Kerr seconded the motion. The motion passed unanimously.
Respectfully submitted,
Kim Groves
Land Use Administrator
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