OLD LYME PLANNING COMMISSION
PUBLIC HEARING AND REGULAR MEETING
THURSDAY, SEPTEMBER 13, 2012
PRESENT WERE: Harold Thompson, Robert McCarthy, Steven Ross, Chris Kerr, Stephen Martino, and Alternate Don Willis.
Chairman Thompson called the meeting to order at 7:00 p.m.
CONTINUED PUBLIC HEARING
SUBDVIVISION – BGP DEVELOPERS, LLC – 5-1 DAVIS ROAD
Bob Doane was present on behalf of Questa Builders. He stated since the last meeting he has addressed some technical information shown on the plans as a result of Ann Brown’s memo to the Planning Commission dated August 2, 2012. He further noted as a result of those revisions to the plan the commission has now received a letter from Ann Brown dated September 13, 2012 indicating the proposal complies with the Zoning Regulations.
Doane also noted that he has submitted a 5 foot wide easement as well as a proposed conservation easement to Attorney Cassella for his review.
Doane also noted that the commission had received a letter from Tom Metcalf dated September 6, 2012.
Harold Thompson stated he also reviewed the correspondence from Tom Metcalf and felt all the issues had been addressed.
There were no further comments from the commission or the audience.
Harold Thompson made a motion to close the public hearing. Stephen Martino seconded the motion. The motion passed unanimously.
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REGULAR MEETING
KRISTEN HEIGHTS SUBDIVISION – LAND OF ALAN HAHN AND JUDITH HAN 79-1 ROWLAND ROAD – CHANGE TO DECLARATION OF RESTRICTIVE COVENANTS
Don Willis recused himself.
Attorney Edward Cassella stated this was a 3 lot subdivision and together with the subdivision there was a separate parcel shown on the plan as a gravel road. He stated the developers requested to keep the gravel road as a private road and in doing that the Planning Commission agreed that the private road would be owned by a Homeowner Association consisting of the three home owners and the association would be responsible for maintaining and plowing the road. He stated at the time of this approval in 1984 a Declaration was signed by the Hahn’s and recorded on the land records and all three of the lots. He noted the Declaration states that no changes could be made to the Declaration without the consent of the Planning Commission. The Planning Commission wanted to be certain that there
would be adequate access to and from those properties. Cassella stated there were percentages levied for each lot which would pay all the costs and taxes associated with the strip of land.
Cassella stated in the 1994 the three property owners essentially transferred the road out of the association and into 1/3 interest in favor of each of the homeowners. So each of the lot owners now owns 1/3 subject to new provisions. He stated in the deeds they all took the title subject to and provides that they have the right to use the road for egress, utility service, and they will be bound for the maintenance by 20%, 30% and 50%.
Presently, the middle property owner is trying to sell their home and lot and in reading the Declaration it was determined that the association was dissolved essentially changing the terms of their approved subdivision without the Planning Commission’s consent.
He stated Attorney Cathcart is representing Janet Hinman, owner of 79-1 Rowland Road and she has contracted to sell her property. The buyers of the property have requested a delay in their closing until the Planning Commission approves the changes to the Declaration occasioned by the transfer of title from the Association to the individual lot owners.
Cassella stated the Planning Commission needs to address this issue in some manner to ensure that it meets the regulations and no enforcement actions will be taken against this subdivision.
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Thompson asked Cassella to explain the options to the commission. He also expressed concern about setting a precedent.
1. The Planning Commission could request the association be re-established.
2. The commission could determine they are satisfied with the existing arrangement. Cassella stated he spoke with Ann Brown today and there really are not any zoning issues.
3. The commission could strengthen the language in the deed to include some of the provisions in the regulations that would be generally required. He said the inclusion of some additional language would give the town the ability to come in if there is an issue with the maintenance of the road.
Gary Yuknat, property owner of 79-2 Rowland Road. Mr. Yuknat stated in 94/95 the
neighbors got tired of paying the corporate tax. Therefore the three neighbors went to
Attorney Marilyn Clarke to have her dissolve the corporation. He stated the three
property owners all presently equally own the road which requires no corporate tax to
be paid. Yuknat stated he felt it was ridiculous to pay $250.00 to the State of Connecticut
for the privilege of owning a piece of property.
Chris Kerr stated the property was developed in the manner it was because of the
required road frontage. Therefore he expressed concern that if the road is dissolved there
would be no road frontage. Kerr asked if this would be setting a precedent. He stated as
far as precedent goes land use is different in the fact that every property is unique.
Cassella explained that under the regulations a private road is only available when its
owned by not another landowner but by an association.
Thompson said his concern is now the arrangement is working but sometime in the future
it could become a problem. Ross asked what if an additional restriction were in
place that prohibits the transfer of interest in the road unless it is in conjunction with the
sale of the property and the ownership of the road is restricted to the owners of the lots.
Ross stated there are two easy options. One is to revert back to the arrangement that was approved by the Planning Commission. The second would be to introduce the covenant that he described with the additional language. He said he tends to favor the second from a practical standpoint not a legal standpoint.
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Steve Ross made a motion to modify the existing arrangement that was put in place in 1994 with the additional restriction that the undivided interests in the road will not be transferred to any parties without concurrent transfer of property and the ownership of the road is restricted to the owners of the three properties. Robert McCarthy seconded the motion.
Discussion:
Chris Kerr said technically we are dissolving the road where there legal frontage exists.
Thompson asked if it was a road by definition in 84. Kerr stated with the association in place it meets the definition of a road. He further stated his fear is that with all these private roads around town he was not sure this was the best move just to avoid paying the $250.00 fee. He said then technically you could have a 30 lot subdivision with no frontage. He stated the difference is huge in development if you don’t need to meet frontage requirements and by dissolving the road these three lots are left with no frontage. Yuknat state the road is still there.
Marsh stated the town has been addressing this issue of building on other than what are considered private roads and there is a huge thing in town over this because there are pre-existing conditions like this and therefore the decision that is made on this may impact a lot of the streets in town.
Yuknat stated as a garbage collector private roads are a pain and should not be allowed anywhere in town. They won’t sign any agreements if anything is damaged, they don’t get sanded and they don’t get plowed.
Kerr stated this type of agreement would not be done now and would not have been done then. Ross stated the biggest argument is the $250.00 fee to the State, therefore he suggested a different legal entity be established that doesn’t require corporate filing. Yuknat stated they are pleased with their current arrangement.
Cassella stated if the commission wants to move forward with the current motion on the floor he suggested they establish some findings as to the uniqueness of this particular situation, length of roadway etc. in order to not establish a precedent.
Kerr stated he was stuck on the road frontage and did not feel the change was necessary to save $83.00 per property owner.
Steven Ross asked to close the discussion and move the motion…..
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Thompson called for a vote in favor of the motion on the floor. The motion failed.
Opposed: Ross, McCarthy, Kerr and Martino.
Ross made a motion enforce the original agreement that was approved by the Planning Commission in 1984. Chris Kerr seconded the motion.
Discussion:
Cassella verified that the commission wants the gravel shown on this map to be transferred back into some sort of association pursuant to an acceptable Declaration of the Association. Ross stated the commission wants the same arrangement in which satisfies the legal requirements for private roads and frontages.
The motion passed unanimously.
LOT LINE MODIFICATION – SHORT HILLS PROPERTIES, LLC – SHORT HILLS ROAD
Don Willis was seated for Chris Kerr.
Marty Smith, Principal of Waterhouse Development was present to request a Lot Line Modification to property already known as the Oaks Subdivision. Mr. Smith stated they purchased additional land and they would like to add it to land they already own. He noted they are not seeking an additional lot but just looking to take legal title to land he purchased.
McCarthy asked if the piece of land was currently part of a much larger parcel. Smith indicated that was correct.
Cassella suggested the land be added to the road because you don’t want to add it to one of the lots. He noted the mylar has already been filed so the lots are established so he felt the obvious place to merge the parcel was with the road which is still owned by the developer.
Harold Thompson made a motion to approve the Lot Line Modification contingent on the Items listed in Ann Brown’s memo dated September 13, 2012 be incorporated and verified. Steven Ross seconded the motion. The motion passed unanimously.
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AMEND THE AGENDA
Harold Thompson made a motion to amend the agenda to add the discussion of 5-1 Davis Road. Robert McCarthy seconded the motion. The motion passed unanimously.
DISCUSSION AND POSSIBLE DECISION – BGP – 5-1 DAVIS ROAD
Harold Thompson made a motion to approve the Subdivision – BGP – Questa Builders – 5-1 Davis Road revised plans entitled “Proposed Subdivision , Prepared for Questa Builders, Inc. 5 & 10 Davis Road East, Old Lyme, Connecticut dated 6/6/12 with revisions through 9/13/12 contingent with the recommendations listed in Attorney Cassella’s letter dated September 13, 2012 including all legal documents submitted in the course of the application must be approved by the Commission’s Counsel, and final form filed on the Land Records with the filing of the mylars, or at another time approved by the Commission’s counsel and that the applicant must post a security bond/performance bond required by the Commission and approved by Tom Metcalf including bonding for open space monumentation if
necessary. Also noting if the monuments are installed before the filing of the mylars a performance bond would not be necessary. Robert McCarthy seconded the motion. The motion passed unanimously.
READING AND APPROVAL OF THE AUGUST SPECIAL MEETING MNUTES
Steve Ross made a motion to waive the reading and approve the minutes as submitted. Stephen Martino seconded the motion. The motion passed unanimously.
Respectfully submitted,
Kim Groves
Land Use Administrator
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