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Zoning Commission Regular Minutes 11/14/05
APPROVED


OLD LYME ZONING COMMISSION
MINUTES OF REGULAR MEETING
Monday, November 14, 2005


The Old Lyme Zoning Commission held a Regular Meeting on Monday, November 14, 2005 at 7:30 p.m. in the Auditorium of Memorial Town Hall.  Members present were Ted Kiritsis (Chairman), Jane Marsh (Secretary – arrived at 7:42 p.m.), Joan Bozek, John Johnson, Brian Kyle (Alternate) and Howard Tooker (Alternate, seated).   Also present was Ann Brown, Zoning Enforcement Officer and Eric Knapp, Commission Counsel.

1.      Convene Meeting; announcement of voting alternates.

Chairman Kiritsis called the meeting to order at 7:31 p.m.  He noted that Mr. Tooker would be a voting member this evening.  He immediately recessed the Regular Meeting to conduct the Public Hearing.  Chairman Kiritsis reconvened the Regular Meeting at 8:50 p.m.

2.      Coastal Site Plan Application to construct a single-family residence, 13-15 Caulkins Road, Michael Simone, applicant.

Chairman Kiritsis noted that the voting members would be himself, Jane Marsh, John Johnson and Howard Tooker.

A motion was made by John Johnson, seconded by Jane Marsh and voted unanimously to approve the Coastal Site Plan Application to construct a single-family residence, 13-15 Caulkins Road, Michael Simone, applicant, as follows:

Whereas, the Zoning Commission has received an application for Coastal Site Plan approval, plan prepared by Angus McDonald / Gary Sharpe & Associates, one sheet, dated July 19, 2005;

Whereas, the Zoning Commission has held a duly noticed public hearing on October 12, 2005, and November 14, 2005, and the commission has heard testimony from both citizens of Old Lyme and the applicant; and

Whereas, the proposed use, construction of a house with 100’ of tidal wetlands is permitted with a Coastal Site Plan approval under the Old Lyme Zoning Regulations, the Commission finds that the applicant has provided sufficient evidence to demonstrate compliance with the technical provisions Section 31.2 of the Regulations with the following modifications required to be added to the final plan:

1.      Limit of 400 cubic yards of material to be brought in to elevate site.
2.      Applicant must file a document on the land records indicating that the two lots are merged for all purposes.

Whereas, the Commission finds that the applicant has demonstrated compliance with the General Standards of Section 31.3, in particular that the proposed use, buildings and other structures and site development are designed and arranged as follows:

        a.      to achieve safety, comfort and convenience;
b.      to conserve as much of the natural terrain and provide for vegetation on the site to the extent practical;
c.      to be in architectural harmony with the surrounding area;
d.      to protect nearby residential and preservation areas;
e.      to show that reasonable consideration has been given to the matter of restoring and protecting the ecosystem and habitat of Long Island Sound and reducing the amount of hypoxia, pathogens, toxic contaminants and floatable debris therein; and

Whereas, the Zoning Commission has deliberated and considered the evidence presented at the hearing as well as the input of its staff and professional consultants; and

Whereas, the Zoning Commission has submitted a copy of this application to the Office of Long Island Sound Programs of the Department of Environmental Protection for review and comment, the Commission determines that the application and plans as they will be revised (if required) are consistent with the goals and policies of the Coastal Management Act;

Now, therefore be it resolved that the Old Lyme Zoning Commission grants approval to Michael Simone for Coastal Site Plan approval, plan prepared by Angus McDonald / Gary Sharpe & Associates, one sheet, dated July 19, 2005, for property at 13-15 Caulkins Road, Old Lyme, CT.


3.      Site Plan/Special Exception Application to construct a six foot fence in the front setback, 40 Mile Creek Road, David Prilipp, applicant.

Ms. Marsh stated that the applicant’s testimony of the conditions of the lot, including headlights, is found to be sufficient information to allow the 6’ fence.

A motion was made by Jane Marsh, seconded by Joan Bozek and voted unanimously to approve the Site Plan/Special Exception Application to construct a six-foot fence in the front setback, 40 Mile Creek Road, David Prilipp, applicant, as follows:

Whereas, the Zoning Commission has received an application for a Special Exception under section 7.4.6b of the Zoning Regulations, with a hand drawn plan, to allow a six foot tall fence in the front setback area of the lot at 40 Mile Creek Road;

Whereas, the Zoning Commission has held a duly noticed public hearing on October 12, 2005, and November 14, 2005, and the commission has heard testimony from both citizens of Old Lyme and the applicant; and

Whereas, the proposed use is permitted by Special Exception under the Old Lyme Zoning Regulations, the Commission finds that the applicant has provided sufficient evidence to demonstrate compliance with the provisions Section 7.4.6b of the Regulations.   

Whereas, the Zoning Commission has deliberated and considered the evidence presented at the hearing as well as the input of its staff and professional consultants; and

Now, therefore be it resolved that the Old Lyme Zoning Commission grants approval to David Prilipp for a Special Exception under section 7.4.6b of the Zoning Regulations, with a hand drawn plan, to allow a six foot tall fence in the front setback area of the lot at 40 Mile Creek Road.

4.      Petition to amend the Old Lyme Zoning Regulations:  Schedules A-2 and C-2, 21.3.2, 21.3.7, 21.3.8, 21.3.9, 21.3.10 and 37.5.2b.

Mr. Johnson stated that he would like to suggest that the applicant, if he were to come back, bring application for amendment to the Zoning Regulations to the Commission prior to the Site Plan/Special Exception Application.  Ms. Marsh noted that because there are commercial uses in the building the petition to amend the regulations is required.  She noted that it is the applicant’s job to come to the hearing and explain their reasoning to the Commission and the public.

A motion was made by Joan Bozek and seconded by John Johnson to deny without prejudice the Petition to Amend the Old Lyme Zoning Regulations:  Schedules A-2 and C-2, 21.3.2, 21.3.7, 21.3.8, 21.3.9, 21.3.10 and 37.5.2b, because the applicant was not present to identify the reasons to change the newly enacted Regulations which took two years to amend; so voted unanimously.

5.      Petition to amend the Old Lyme Zoning Regulations:  Section 37.5.2b and Schedule C-2.

Ms. Bozek stated that the comments, as above, would apply to this proposed amendment also.

A motion was made by Joan Bozek and seconded by John Johnson to deny without prejudice the Petition to Amend the Old Lyme Zoning Regulations:  Section 37.5.2B and Schedule C-2, because the applicant was not present to identify the reasons to change the newly enacted Regulations which took two years to amend; so voted unanimously.

6.      Site Plan/Special Exception Application to construct a dock, 33 Neck Road, Blair and Caroline Hoxby, applicants.

The Commission received the application and set the Public Hearing for December 12, 2005.

7.      Site Plan/Special Exception Application to construct a dock, 31 Smith Neck Road, Thomas and Janet Bagg, applicants.

The Commission received the application and set the Public Hearing for December 12, 2005.

A motion was made by Jane Marsh, seconded by Joan Bozek and voted unanimously to amend the agenda to add the following two applications for receipt.

8.      Site Plan/Special Exception Application to reconfigure lots and waive the construction of the parking, Cherrystone’s, Shore Road.

The Commission received the application and set the Public Hearing for December 12, 2005.

9.      Special Exception Application for the sale of liquor, 40 McCurdy Road, Old Lyme Country Club, applicant.

The Commission received the application and set the Public Hearing for December 12, 2005.

A motion was made by Jane Marsh, seconded by John Johnson and voted unanimously to add the Nicole’s Convenience Store application for a grocery beer permit to the agenda.

10.     Old Lyme Country Club, 40 McCurdy Road, request for release of bond.

Ms. Brown explained that the bond was held for landscaping, fencing and to produce an as-built plan.  She indicated that the site is in compliance.

A motion was made by John Johnson, seconded by Joan Bozek and voted unanimously to release the bond of Old Lyme Country Club, 40 McCurdy Road.

Ms. Bozek questioned whether the site has been inspected for be sure the landscaping has been installed.  Ms. Brown indicated that she has inspected the property and the landscaping is complete.

11.     All Pro Automotive, 147 Boston Post Road, request for release of bond.

Ms. Brown recommended that the bond not be released as the work has not been completed.  She noted that the landscaping has not been completed and there are open soils.  Ms. Brown stated that Mr. Graybill has requested that the Commission discuss his Halls Road property this evening.  Chairman Kiritsis stated that they would consider this request after they have completed the items on the agenda.

12.     Informal discussion with Attorney Cronin regarding conversion of chapel, 287 Shore Road, to condominium units.

Attorney Cronin stated that he represents Michael Kohen and Steven Wallach, who were also present, along with Jeff Flower, architect.

Attorney Cronin stated that his clients had no participation in the decision to sell the chapel.  He indicated that they are contract purchasers of the chapel and if they cannot find a suitable use they do not have to move forward with the purchase.  Attorney Cronin stated that they have come up with a proposal that they believe represents the highest and best use of this property, other than a church use.

Attorney Cronin stated that they would like to convert the structure to six condominium units, with no additions to the structure.  Jeff Flower, architect, displayed drawings of the proposed structure.  He explained that Gary Yuknat, Shoreline Sanitation, believes that they will be able to meet the Public Health Code Regulations.  Mr. Johnson questioned whether the access was from Swan Avenue.  Mr. Flower replied that it is.  

Mr. Flower stated that there will be two parking spaces assigned to each unit, with overflow parking that is shown as gravel.  He noted that the units will be between 1,500 and 2,000 square feet in area.  Mr. Flower noted that the parcel is 34,000 square feet.

Ms. Marsh indicated that she is concerned that the cars will back out onto Swan Avenue.  Mr. Flower stated that they cannot configure it differently.  Mr. Johnson indicated that a traffic report may be in order.  Mr. Tooker questioned whether there was a law that prohibited vehicles from backing out onto the Town Road.  Mr. Flower replied that there is not.  Ms. Bozek suggested asking Town officials regarding the backing out onto Town roads.  Ms. Brown questioned the appropriateness of backing out onto the street.  Mr. Flower stated that this project is a good transition from the beach neighborhood to the commercial area across the street.

Attorney Cronin stated that there is no heating system in the church because it was a seasonal church.  He noted that the building is clean, i.e., there is no asbestos, lead, etc.  

Chairman Kiritsis questioned what the applicant is proposing to allow this project in an R-10 zone.  Attorney Cronin acknowledged that the project does not fit into the current zoning scheme.  He indicated that the he has read the new Regulations for the Sound View Village District.  Attorney Cronin submitted a map showing a zone change for the chapel property.  He stated that they if this property was located in the Sound View Village District, they would, with minor adjustments, comply with the Regulations.  Attorney Cronin stated that it is his thought to come up with a Regulation that will give a special status to existing properties located in the R-10 Zone.  He indicated that they have not completed a study to know how many buildings would be affected by this change, but they certainly would as part of their presentation.

Attorney Cronin stated that the difficulty is that if the structure cannot be converted to residential use, the structure would have to be destroyed.  He noted that the Regulations would only allow two lots and that would be economically unviable.  Attorney Cronin stated that the Regulations would allow conversion to a health care facility or nursing home.  He noted that as part of the contract, his clients have contract rights on the property across the street, which is ½ acre of commercial land.  Attorney Cronin stated that if the church is converted to condominiums, the developers will certainly put a compatible use on the other side of the street.

Attorney Cronin stated that his approach is to write a Regulation that would allow specialized structures in high-density zones to be converted under certain standards and those standards would be similar to those approved for the Sound View Village District, without expanding the district.

Ms. Marsh stated that the Sound View Village District area was blighted and so the Regulations in the area were changed to rejuvenate the area.  She noted that in all of those discussions, regarding the inequity of allowing something in this area and not in another, the assurance was given that there was no desire to do it in any other location.  Ms. Marsh stated that if the Zoning Commission allows this type of change, the equity issue comes right back to the Commission.  She noted that if this property can have condominiums, then why can’t every property in the beach area have condominiums.  Ms. Marsh stated that if they allow a zone change for just this piece of property, another person will request it for just their property.

Mr. Flower stated that the alternative is that the building just sits and goes to ruin.  He noted that the church is over 7,000 square feet and is too large to be a house.  Ms. Marsh stated that it could be a home, but noted that the location is not great.

Attorney Cronin stated that he envisions that the Regulation they would propose would only apply to three or four properties.  He noted that one that it may also apply to is the other church that is on the market on Lyme Street.  Ms. Marsh questioned whether they would be year round use condominiums.  Attorney Cronin replied that they would be year round.  Ms. Marsh pointed out that the church use was only seasonal.  Mr. Johnson noted that the church was seasonal and used one day a week.

Attorney Cronin stated that he used the SVVD Regulations as an example of how the Commission took an individual situation and applied certain principles.  He noted that they are looking for the Commission’s input.

Mr. Johnson suggested that they approach as an adaptive use, rather then extending the SVVD area.  Attorney Cronin stated that the applicant did consider going to the Zoning Board of Appeals as they believe they have a legal hardship.  Mr. Johnson stated that they would like to see the amendment proposal before the application.  Ms. Marsh stated that she is concerned about the slippery slope the Commission is being placed on.  She indicated that she believes it is significant and there will be a fairness issue for everyone in that area.  Ms. Marsh stated that every time the Regulations are changed the next person says why not me?  She stated that the proposed amendment cannot bring it into any conflict with anyone else.  Ms. Marsh stated that more residential units in that area will create more traffic and septic problems.  She noted that the subject building was never used residentially.  Attorney Cronin stated that they have made many inquiries and believe they will have support from many people.

13.     Site Plan/Special Exception Application for a grocery beer permit, 19 Halls Road, Nicole’s Convenience Store, applicant.

Mr. Johnson indicated that he believes it is a reasonable request.

A motion was made by John Johnson, seconded by Joan Bozek and voted unanimously to approve the Site Plan/Special Exception Application for a grocery beer permit, 19 Halls Road, Nicole’s Convenience Store applicant.

A motion was made by Joan Bozek, seconded by John Johnson and voted unanimously to amend the agenda to add All Pro Tire, 85 Halls Road, to the agenda.

14.     All Pro Tire, 85 Halls Road

Attorney McGarry, along with Jim and Joanne Graybill, were present to explain the proposal.  Attorney McGarry stated that they would like to submit an application for Site Plan approval.  He noted that Mr. Graybill has opened his new repair facility on the Boston Post Road and has closed down the repair facilities at Halls Road.  Attorney McGarry stated that the intention is to remove the repair facilities, the impoundment facility and to change the use to make it a convenience store.  He noted that they will meet the Regulations in every respect and will submit an application to Inland Wetlands.  Attorney McGarry stated that they will install a storm captor.  He explained that they will not be making any changes to the footprint of the building other than removing the bay doors.  Attorney McGarry requested that the Commission accept the application.  Chairman Kiritsis stated that when Mr. Graybill originally discussed this with the Commission, the Commission expressed concern regarding the increase in traffic in the area.  He questioned whether a traffic study has been performed.  Attorney McGarry stated that he understood that the concern of the Commission was that Mr. Graybill go to the Zoning Board of Appeals and he reviewed the Regulations and does not feel that it is necessary.  He indicated that he does not know what the Zoning Board of Appeals would need to vary for the applicant.  

Ms. Brown noted that the issue discussed originally was the fact that the lot is nonconforming and the Commission thought that although there were no site changes planned, the use change would require approval from the Zoning Board of Appeals.  

Mr. Graybill pointed out that they are reducing the site coverage to 55 percent and added landscaping.

Ms. Bozek stated that the Commission’s original thought was that this use is increasing the intensity of use on a nonconforming lot, thereby requiring approval from the Zoning Board of Appeals.  She noted that as a repair facility the cars come in and stay for twenty minutes to an hour.  Ms. Bozek stated that as a convenience store twenty people can come in, in a ten-minute period.  She noted that the intensity increase is the issue on a nonconforming lot.

Attorney McGarry questioned where in the Regulations the Zoning Board of Appeals would have authority to vary this use.  He noted that the proposed use is permitted in the Zoning Regulations.  Ms. Marsh noted that the subject site is nonconforming.  Attorney McGarry stated that the site received site plan approval in 1982 from both the Zoning Commission and the Zoning Board of Appeals.  Ms. Bozek noted that that approval was for the current use, not a retail establishment.

Mr. Johnson stated that everyone was very surprised with the impact the donut shop had on Halls Road.  He indicated that he would like the applicant to supply a traffic report that would support that Halls Road could handle this use.  Mr. Graybill stated that he is only supplying a service for people that are already going down the road.  Mr. Johnson stated that it is the entering and exiting that may be the problem.  

Mr. Graybill stated that he could keep a repair shop on the site and expand his towing business.  He stated that he feels his proposal would be a better use for the Town.  Ms. Marsh stated that the repair facility is a unique use.  She noted that there are quite a few convenience stores and she does not think it is an enhancement.  Ms. Marsh stated that the repair facility is unique and a good use of the property.

Brian Kyle stated that he is concerned about traffic leaving the site and turning left.  Mr. Graybill indicated that in the 28 years he has been there he has not seen an accident.

Ms. Marsh stated that there will be two uses on the site, one being the pumping of gas and the other being a convenience store.  She indicated that she would like the applicant prove that these two uses will work on a nonconforming property.  Chairman Kiritsis stated that he is primarily concerned with safety and the intensity of the traffic entering and exiting.  He noted that there was an accident approximately three weeks ago at the traffic light going into the A&P.

The Public Hearing for this application was set for the January 9, 2005 Regular Meeting.

15.     Site Plan/Special Exception Application to reconfigure lots and waive the construction of the parking, 100 Acres LLC, applicant, 285 Shore Road.

Joe Wren, professional engineer, was present to represent 100 Acres LLC, the applicant.  He noted that the applicant would like to subdivide the restaurant property from the 32 acre parcel that they own.  Mr. Wren stated that three of the sheets submitted are the survey of the property.  He noted that the restaurant parcel will be 2.368 acres.  Mr. Wren stated that they are before the Planning Commission to subdivide the property.  He noted that the restaurant building is nonconforming as it does not meet the street setback requirement which is 60’ in the C-30 zone and the building is 6.7 feet off the street line.

Mr. Wren stated that the purpose of the site plan is to show that when the parcel is subdivided from the larger parcel, the property can be improved in the future and meet all the zoning requirements.  He noted that the improvements are not proposed to be completed at this time.  Ms. Marsh questioned why they wouldn’t be constructing the parking.  Mr. Wren explained that the existing paved area can support the restaurant patrons.  He noted that it would be quite expensive to change the parking area.  Ms. Marsh questioned the purpose of the Zoning Commission approving the application if the work is not going to be done.  Mr. Wren stated that in order to subdivide the parcel he was asked to show that it could stand alone.  Ms. Marsh stated that if the cut is made, the property should be improved.

Ms. Marsh stated that many people park in the area that is being cut off from this parcel.  She indicated that splitting the parcel does impact the restaurant parcel.  Ms. Marsh stated that if the applicant wants to cut the lot size it unfortunately puts them in the position of having to meet the current Regulations.  She noted that they need to be met, not just in theory but in reality.

Ms. Brown stated that she counseled the applicant to submit this application because they have a working establishment and currently there is quite a bit of parking.  She stated that the Commission has a Regulation that allows, by Special Exception, the waiving of construction of the parking as long as the available space is demonstrated.  Ms. Marsh stated that there is no possible way they will construct parking unless the Commission requires them to.  She noted that the current situation is not nice looking and not well maintained.  Ms. Marsh stated that she would like to see a plan that demonstrates what they do have and where the additional spots will be located to get to 91 parking spaces.  She reiterated that the site plan must show how the site will be after the subdivision.  Mr. Wren stated that they are only before the Zoning Commission so that they may subdivide the property.  Ms. Bozek noted that the Commission needs to approve the site as it will be the day after the division.

16.     Election of Vice Chairman

A motion was made by John Johnson, seconded by Joan Bozek and voted unanimously to appoint Tom Risom as Vice Chairman of the Zoning Commission through January, 2006.

17.     Approval of Minutes

A motion was made by John Johnson, seconded by Joan Bozek and voted unanimously to approve the minutes of the September 12, 2005 Regular Meeting and Public Hearing.

A motion was made by John Johnson, seconded by Joan Bozek and voted unanimously to approve the minutes of the October 12, 2005 Regular Meeting and Public Hearing.

18.     Zoning Enforcement – Zoning Enforcement Report.

No report.

19.     Fee Schedule

Chairman Kiritsis stated that the SVVD Regulations require an architectural review.  He noted that it does not appear that this review can be done by CRERPA.  Chairman Kiritsis stated that a fee schedule needs to be created so that the applicant can be charged for this service.

Ms. Brown stated that the office staff is now attaching another sheet with the applications so that the applicant signs off specifically stating that if the Commission incurs extra expensive in evaluating the applications the applicant is willing to pay for it.  Ms. Marsh suggested a $500.00 fee for architectural review.  Chairman Kiritsis asked Ms. Brown to research the fee and give a report at the December meeting.  Ms. Bozek suggested that there be a two-tier structure, one for major reviews and one for small reviews, such as a fence.  Ms. Brown noted that the Commission could set an amount and then return the difference between that and the actual bill from the architect.  Chairman Kiritsis asked that Ms. Brown could check on the fees of other towns.


20.     Regulation Rewrite – Set Special Meeting.

Chairman Kiritsis questioned whether Mark Branse has supplied the revised sections.  Ms. Brown indicated that she has not requested it yet.

21.     Correspondence

None.

22.     Any new or old business to come before Commission.

Ms. Bozek stated that she has enjoyed working with all the Commission members.  The Commission members expressed their appreciation for the many years Ms. Bozek has served on the Commission.  

23.     Miscellaneous/Adjourn

A motion was made by John Johnson, seconded by Joan Bozek and voted unanimously to adjourn at 10:58 p.m.

Respectfully submitted,



Susan J. Bartlett
Recording Secretary