APPROVED
OLD LYME ZONING COMMISSION
MINUTES OF REGULAR MEETING
Monday, March 14, 2005
The Old Lyme Zoning Commission held a Regular Meeting on Monday, March 14, 2005 at 7:30 p.m. in the Auditorium of Memorial Town Hall. Members present were Ted Kiritsis (Chairman), Jane Marsh (Secretary), Howard Tooker (Alternate, seated) and Steven Ames (Alternate, seated). Also present was Ann Brown, Zoning Enforcement Officer.
1. Convene Meeting; announcement of voting alternates.
Chairman Kiritsis called the meeting to order at 7:30 p.m. He noted that Mr. Tooker and Mr. Ames would be seated this evening.
2. Site Plan/Special Exception/Coastal Site Plan Application to construct a community center, 39-41 Old Shore Road, White Sand Beach Association, applicant. Receive and set Public Hearing.
Dennis Chambria, 25 Springfield Road, was present to represent the Board of the White Sand Beach Association. He noted that he is Chairman of the Building Committee. Mr. Chambria explained that there is currently a two-story, 6,000 square foot building on the property and they would like to remove this structure and put up a new building. He presented photographs of the site
Mr. Chambria explained that they would like to join three pieces of property and position the new one story building parallel to Old Shore Road, meeting all the setback and bulk requirements for the R-10 zone. He stated that the Association uses the building two to three times a year during the summer for their meetings, and the children will use it as a recreational site. Mr. Chambria stated that they are requesting a waiver to the parking regulations because the building will only be used by members of the community, as it has been for over fifty year, and no one drives to the building. He indicated that they have shown where they could provide parking if it were ever deemed necessary. Mr. Chambria indicated that the property could provide 100 parking spaces, although the regulations
would only require 13. He explained that they are proposing this project to improve the facility and provide a safe, clean and modern building. Mr. Chambria stated that the asbestos has already been removed and the building has been sealed off.
Mr. Chambria stated that the civil engineer found a drain pipe that drains from the wetlands across the street. He indicated that they do not know the exact location of the pipe and Gary Yuknat is going to use a sounding device to locate the pipe. Mr. Chambria explained that they have positioned the new building slightly away from this area. He reiterated that the building would only be used by the Association and would only be used during the summer season.
Ms. Brown stated that the applicant is requesting a Special Exception because they do not want to construct the parking shown on the plan. Ms. Brown stated that she would like to see details of outside lighting, which was not provided with the application. She indicated that this application will be before the Wetlands Commission on March 22, 2005. Ms. Brown noted that the Zoning Commission cannot render a decision until the Wetlands Commission issues a decision.
The Public Hearing for this application will be held on Monday, April 11, 2005.
3. Site Plan/Special Exception/Coastal Site Plan Application for commercial development/residential development, 77-79 Hartford Avenue, Jerry and Dolores Vowles, applicants. Receive and set Public Hearing.
Jerry Vowles, applicant, was present to explain his application. He explained that he has merged his two properties and would like to join the two existing buildings. Ms. Brown stated that the property is located in a C-10 Zone. Mr. Vowles stated that the two lots combined are 50’ x 100’. Ms. Brown stated that Mr. Vowles has received approval from the Zoning Board of appeals.
Mr. Vowles explained that Mr. Yuknat is installing a new septic system. He noted that the property is seasonal. He pointed out the six parking spaces in the back of the building. Mr. Vowles explained that the plan eliminates one store and one apartment, as the two buildings each currently have one store and one apartment.
Ms. Brown stated that Mr. Vowles will be going before the Zoning Board of Appeals once again later this week to discuss a few very minor changes that he has had to make to the plan.
The Public Hearing for this application will be held on Monday, April 11, 2005.
4. Site Plan/Special Exception Modification Application to construct multifamily housing, 49 Hatchetts Hill Road, Hilltop Development LLC, applicant. Receive and set Public Hearing.
Attorney Cronin was present to represent the applicant, along with Matthew White, McDonald/Sharpe Associates, and the principal of Hilltop Development, Dave Rivero. Attorney Cronin stated that Mr. Diebolt has been before the Commission several times with preliminary plans and noted that the current plan has been modified significantly.
Matthew White explained that the property is 20.6 acres off Hatchetts Hill Road. He noted that topographically, the property consists of two high knolls, one of which has an elevation of 146’. Mr. White stated that the elevation of Hatchetts Hill Road is approximately 100 feet. He noted that thirty percent or greater slopes are marked on the plan in gray, primarily to the south and west. Mr. White stated that the proposal is for a 16 unit, multi-family project. He explained that the site lies in three different zones, LI-80S, LI-80 and a small portion in the RU-40 Zone. He noted that the project is proposed to be located in the LI-80 Zone on the property.
Mr. White stated that the proposal is for 8 buildings with 16 total units. He explained that the site will be served by a community water system, with favorable water supplies coming from the test wells that have been drilled. Mr. White indicated that each building will have its own septic system. He noted that because the sight has 4,800 gallons of septic flow per day, it will be in the jurisdiction of the State of Connecticut Department of Public Health.
Mr. Kiritsis stated that he is concerned about the location of the driveway and questioned whether a traffic study has been done. Mr. White stated that they show some regrading along the frontage which achieves a 400 foot sight distance to the west and to the east one can see all the way to the intersection. He noted that the driveway is at the top of the hill will allows for good sight in both directions.
Attorney Cronin stated that there is a provision in the Regulations that allows for the extension of use from one zone into another zone, assuming one owns property in both zones. He noted that the provision allows you to extend the use of one’s zone an additional 40 feet by Special Exception. Attorney Cronin stated that they consider their application to include a Special Exception to allow the extension of use 40 feet into both the Residential and LI-80S Zone.
Chairman Kiritsis stated that at the current time the only areas that allow multi-family use are at the north end of Lyme Street. Attorney Cronin stated that the site is extremely rough, which is one of the reasons they are proposing a residential use instead of commercial or industrial. He explained that industrial buildings need large areas for the buildings and parking and this site is not a good site for what it is zoned for. Ms. Marsh stated that the issue of multi-family use came up at the last meeting. Attorney Cronin stated that the major issue is whether this particular proposed use is a use which is permitted in the Zone. He noted that this issue came up for the first time at the last meeting. Attorney Cronin stated that he has been working with Attorney Branse. He
explained that Schedule B-1, which shows permitted use, states that “any use permitted in a residential or rural district, subject to the additional standards and submission requirements, site development plan and special exception procedures specified for the use in such districts.” Attorney Cronin stated that it appears clear to him that any use permitted in a residential or rural district is permitted in the LI-80 Zone. Ms. Marsh stated that Residential means “R” and Rural District means “RU.” She noted that she realized this at the last meeting. Ms. Marsh stated that MFR is a different zone. Attorney Cronin stated that Schedule A-1 is entitled “Permitted uses in Residence and Rural Districts.” He noted that this schedule includes MFR. Attorney Cronin stated that the Court’s interpretation is that it is not what you intended to say, it’s what you said. Ms. Marsh stated
that when the Commission approved MFR there were only two places in town where they were to exist which were on either side of the turnpike.
Attorney Cronin stated that when the Multi-Family Regulations were created in the 80’s it was the same time that the PRCD Regulations were adopted. He noted that there was no discussion in the minutes as to specific zones and he did not see any contrary intent. Attorney Cronin stated that the applicant met with the Commission a year ago and twice since then and the contract has been signed with the expectation that this is a permitted use. He noted that there is no practical way to develop this property as a PRCD.
Mr. Rivero stated that the units are intended to be 2,800 square feet, with a first-floor master bedroom suite, great room, kitchen opening up to a breakfast nook, dining room and a small parlor. He noted that the second floor will be comprised of one bedroom and one bath with a loft area. Mr. Rivero stated that there will also be a bonus room over the garage which could be a home office or television room. He explained that each unit will have a two-car garage.
Attorney Cronin stated that the LI-80S zone does not incorporate the reference to allowing residential or rural district uses. He indicated that there is only one multi-family project allowed in each LI-80 zone, and there are only three contiguous areas of LI-80. Attorney Cronin stated that one is along the railroad track in the southern part of town, one is the subject parcel and the third is the large LI-80 zone to the north on the opposite side of the street. He noted that the maximum units allowed in each development is 24.
Attorney Cronin stated that the second legal issue is the access to the property, which is through an adjacent LI-80S Zone. He noted that the multi-family use is not permitted in that zone and the question is can the access come through this zone bearing in mind that the roadway would be the only improvement in the LI-80S zone. Attorney Cronin stated that there may be underground leaching fields or other underground utilities in the LI-80S Zone. He noted that Ms. Brown’s opinion is that anything underground is not considered a structure and therefore would be an appropriate use of the property. Attorney Cronin stated that in initial discussions with Mark Branse he indicated that there was case law on it. He indicated that the Barberi case (versus Town of East Windsor Planning and
Zoning) the Court held that to go through a residential zone to gain access to a commercial zone was okay, as long as the Regulations of the Town did not prohibit it. He explained that the neighbors’ appealed and the Court did not find in the neighbors’ favor. Attorney Cronin noted that Attorney Branse further researched the subject and found another case which he referenced in his letter which is part of the file. He stated that in that case the Court interpreted the Regulations as prohibiting access through a residential zone which is the exact opposite result. Attorney Cronin stated that this decision was appealed and the Court upheld their decision.
Attorney Cronin stated that the next legal matter is the requirement of Section 32.6.7 which requires that a roadway be constructed in accordance with the design and the construction standards of the Town of Old Lyme. He indicated that these constructions standards are a municipal ordinance, not a Zoning or Planning Regulation. Attorney Cronin stated that the Planning Commission has a provision in the Subdivision Regulations that if they feel that there are special circumstances and there is a hardship for the applicant to construct to these standards, they have power to vary the road standard. He indicated that the access to the project is tricky because of the topography it is difficult to meet the specific requirements of the Ordinance. Matthew White indicated that the specific issue is the
horizontal curve radius. He noted that if this was a subdivision road design with the minimum horizontal curve radius, this road would have to come in straighter and deeper into the proper before it starts to turn to the west. Mr. White stated that the further the road goes in before it goes west, the more extreme the grading. He noted that the Subdivision Regulations allows for waivers for items such as topography. Mr. White stated that this is a unique condition of the site and the only access to the property is from Hatchetts Hill Road and the only appropriate location is where the road is located. He noted that the slope only gets to 10 percent as designed. Mr. White stated that there are no safety concerns with the requested waiver. Attorney Cronin stated that these standards would not apply if the request was for use as an industrial development because it would not be a Town road.
Attorney Cronin noted that the Planning Commission has the right to waive the road construction standard requirement, it is his argument that the Subdivision Regulations, to the extend they may apply, are also under jurisdiction of the Zoning Commission. He indicated that Attorney Branse does not agree with this interpretation.
Ms. Marsh stated that if the applicant is asking for a waiver, the Zoning Commission has to know that the health and safety of all these occupants is going to be improved by it rather than it being an issue of expense for the developer. She stated that fire access and the like is important. Attorney Cronin question at this time is who, if not the Zoning Commission, would have the authority to waive the road design standards. He indicated that because the roadway is servicing a residential use, privately owned, it was agreed by Attorney Branse, Ms. Brown and himself that the roadway should be designed to residential, not commercial standards.
Ms. Brown stated that there is a Zoning Regulation that allows the Commission to vary almost any Zoning Regulation for good cause. She indicated that it seems to her that this Regulation would take the Planning Commission out of the equation, as long as the Selectmen and the Fire Department were content with the plan. Attorney Cronin noted that he will review this Regulation with Attorney Branse.
Attorney Cronin stated that there is no question that there is an allowed 40’ extension into the adjacent zones. He indicated that the last question would be allowing the underground improvements on these adjacent zones.
Ms. Marsh questioned whether if this property was actually zoned residential multi-family it would make any difference to the application. Attorney Cronin replied that it would not. Ms. Marsh questioned whether, if the Commission rezoned the property, it would create any difficulty. She questioned whether this would help any of the other issues also, such as road design standards. Attorney Cronin replied that he did not know, he would have to discuss it with Attorney Branse. Attorney Cronin stated that the applicant is a contract purchaser and the property is currently off the market and these questions are all delays. He noted that a Zone change would be a lot simpler than a Regulation change and he would consider that with his client.
Mr. Tooker questioned the length of the road. Mr. White stated that it is 1,300 feet. Mr. Tooker questioned whether any fire provisions have been made. Mr. White stated that there are none proposed with this project and noted that there is a pond down the street at the intersection with Enterprise Drive and a hydrant near Colton Road and Four Mile River Road. Mr. Rivero stated that from the property to the fire hydrant it is a distance of 482 yards and the pond to the property is 1,700 feet, which falls within the 2,000 foot minimum distance. He indicated that there is not an issue with the hydrant being in East Lyme.
Attorney Cronin stated that they would not like to go through the entire process and have it turned down. He indicated that if the project is accepted by the Commission and put out to a public hearing, the Commission has some responsibility to make the determination that it is a permitted use for that area. Attorney Cronin questioned whether the Commission typically accepts applications when they are not a permitted use. Ms. Marsh pointed out that they typically do not as Ms. Brown would not let it get that far. Attorney Cronin stated that it is his opinion that the Regulations are clear that this project is a permitted use in the LI-80 Zone.
Ms. Marsh stated that if the property is suited for multi-family use and not commercial or industrial it would make sense to her for the applicant to request a zone change and argue that to the Commission. She indicated that she is concerned about the remaining LI-80 areas in Town. Attorney Cronin reiterated that there are only three remaining, including the subject one. Ms. Marsh stated that she is trying to accomplish this project in the context of what she believes is the intention of the Regulations and not have the applicant go to any additional hardship because they believed all along it was permitted. Ms. Marsh indicated that incorporating all three zones would also eliminate the issue of the roadway being in the LI-80S zone.
After consulting with the applicant, Attorney Cronin stated that he likes Ms. Marsh’s suggestion because many of the legal issues will be resolved by it. He noted that there will be public scrutiny of the project either way. Attorney Cronin stated that he would suggest that this application sit and an application for a Zone Change will be submitted by the end of the week for Public Hearing in April. Ms. Marsh questioned the purpose of accepting the current application. Attorney Cronin noted that a public hearing does not have to be scheduled before 65 days from this evening. He indicated that he will submit a letter requesting an extension of time.
Ms. Brown noted that the process cannot be completed in order to have a Public Hearing April 11 for the Zone Change. She indicated 35 day notice must be given for the referrals. Ms. Marsh stated that the procedure must be proper. Ms. Marsh suggested accepting the application at the Regulation Rewrite Meeting in two weeks.
A motion was made by Jane Marsh, seconded by Howard Tooker and voted unanimously two add the acceptance of two additional applications to the agenda.
5. Site Plan/Special Exception Modification Application, 147 Boston Post Road, to allow sale of coffee and donuts.
Ms. Brown stated that this application was received today. Mr. Anastas stated that he would like to apply for a permit to sell coffee and donuts at this location. He noted that the food will not be prepared at the site. Jim Graybill, property owner, stated that the sale will be located in a small area of the sales area, or 252 square feet. He noted that his station will be an official emissions inspection station so customers will be waiting to have their cars tested. Mr. Graybill stated it will be a small Koffee Works.
Mr. Kiritsis questioned whether this would be considered a change of use. Ms. Brown replied that it is, but it is considered a modification to the Site Plan. Ms. Marsh questioned whether this could create a traffic problem. Mr. Graybill stated that it will not attract that much additional traffic. He noted that as the cars are filled with gas people may go in and get coffee. Mr. Anastas stated that 70 percent of his business will be between 6:00 and 9:00 a.m.
Mr. Graybill stated that they will be requesting approval for a sign separately. He indicated that he has approval for eight spaces up front for the sale of used cars and if this plan is approved he would keep these open for additional coffee customers and move the used cars to the next eight spaces behind the handicap parking area, toward the back. Ms. Marsh stated that she originally thought Koffee Works was going to be a small business and it is a large business at one particular time of day. Ms. Marsh stated that she is concerned about the traffic that may be generated. Mr. Anastas stated that there are never more than 8 people in line at his current store, which would mean 8 cars at the most. Mr. Anastas stated that at this location he would guess that 70 percent of the people will only
be purchasing coffee. He noted that it takes much longer to serve a customer when people are deciding which donuts they would like. He indicated that he sells, on average, only 90 donuts a day at the Halls Road location.
Ms. Brown noted that when Mr. Graybill was before the Zoning Board of Appeals for his variance, there were questions asked as to whether he would have a convenience store or being selling things. She suggested that he address this with the Commission. Mr. Graybill stated that he feels this addition is a good add-on to his business and has no future plans at this time. He stated that they will also sell soda so there will be no vending machines outside the building. Mr. Graybill stated that he thinks it will be a tasteful business. He indicated that he will not be present at the April Meeting as he will be out of Town.
The Commission accepted the application and set a Public Hearing for April 11, 2005.
6. Site Plan/Special Exception Application, 155 Shore Road, Fetters Package Store, Inc., applicant.
Ms. Brown noted that the application was submitted on Friday afternoon and noted that it was submitted on the incorrect form. She indicated that there is currently no site plan approval for the property. Ms. Brown explained that the proposed location is currently the lawnmower repair shop. Ms. Brown noted that an application has also been submitted to the Zoning Board of Appeals for variances. She noted that to her knowledge there are no changes to the site except to fix the septic system. Ms. Brown stated that it appears that the Zoning Regulations have merged this parcel with the adjacent parcel that is similarly owned so the applicant also needs to revise the site plan to include both parcels. Ms. Marsh stated that the application does not appear to be ready to be accepted.
Ms. Marsh stated that the property is in the Blackhall Association, which also has zoning authority, but never has had to use that authority. Ms. Marsh noted that the zone is not commercial, it is residential, and questioned why they did not request a zone change. She indicated that she did not believe a use variance was allowed. Ms. Brown stated that the applicant’s position is that it is a change in the commercial use, not allowing commercial use in an area that does not allow it.
Ms. Marsh suggested checking with Attorney Branse whether the Zoning Board of Appeals can grant a use variance in this instance. Ms. Brown indicated that she would check with Attorney Branse on the propriety of this application.
7. Approval of Minutes
A motion was made by Steven Ames, seconded by Howard Tooker and voted unanimously to approve the minutes of the February 14, 2005 Regular Meeting and Public Hearing and the March 1, 2005 Special Meeting.
8. ZEO Report
a. Discussion – swimming lessons as a home occupation.
Ms. Brown stated that a woman has asked if she can give swimming lessons in her pool as a home occupation and the home occupation regulations state that the activity has to take place inside. The Commission agreed that they should adhere to the Regulations because of the possible nuisance of outside uses.
b. Enforcement Report.
Ms. Brown distributed the enforcement report, which the Commission discussed.
c. Coordination of Building, Health and Zoning Permit approvals
Ms. Brown stated Ms. Swaney asked her if she knew anything about an authorization for a cottage to be hooked up to year round water. She noted that it was for a cottage that the Health Department had as a seasonal cottage. Ms. Brown stated that the lot is nonconforming. She explained that she discussed it with Mr. Rose and noted that they did not have Zoning approval and to please not send the letter, which he has not sent. Ms. Brown stated that it is extremely frustrating that the Zoning Department could work hard to enforce the Regulations fairly and if Ms. Swaney had not mentioned the letter to her a seasonal property would now have year round water.
Ms. Brown stated that in general she believes the two departments work well together. She indicated that all departments should enforce together. Ms. Brown stated that she would suggest that policy be formed, perhaps by the Board of Selectmen, and some one should be responsible for making sure everyone is working together.
Mr. Ames suggested a Special Committee to meet to discuss issues that come up. Ms. Marsh suggested one form where each department would have to sign off. Ms. Brown stated that currently, Building and Zoning have separate application forms. She indicated that Zoning requires Health approval prior to sign-off and the Building Department will not release the Building Permit until the Zoning Permit is approved. Ms. Brown stated that she would get a form packet from Waterford and Haddam.
9. Regulation Rewrite – Set Special Meeting
A Special Meeting has been set for Monday, March 28, 2005 at 7:30 p.m.
10. Correspondence
None.
11. Any new or old business to come before Commission.
None.
12. Miscellaneous/Adjourn
The meeting adjourned at 10:30 p.m. on a motion by Howard Tooker and seconded by Jane Marsh. So voted unanimously.
Respectfully submitted,
Susan J. Bartlett
Recording Secretary
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