APPROVED
OLD LYME ZONING COMMISSION
MINUTES OF PUBLIC HEARING
Monday, April 10, 2006
The Old Lyme Zoning Commission held its Public Hearing on Monday, April 10, 2006 at 7:30 p.m. in the Auditorium of Memorial Town Hall. Members present were Ted Kiritsis (Chairman), Tom Risom (Vice Chairman – arrived at 7:45 p.m.), Jane Marsh (Secretary), John Johnson, Jane Cable, Steven Ames (Alternate) and Brian Kyle (Alternate). Also present was Ann Brown, Zoning Enforcement Officer.
Chairman Kiritsis called the Public Hearing to order at 7:31 p.m. He stated that Mr. Ames would be seated for Mr. Risom for the first item.
1. Petition to Amend the Old Lyme Zoning Regulations to create a new Section 32.5.10, Conversion of a Non-Residential Building to Dwelling Units, Michael Cohen and Steven Wallet, applicants.
Chairman Kiritsis noted that this Public Hearing was continued from the March Regular Meeting. Ms. Marsh read the exhibits that were submitted since the last Public Hearing, beginning with Exhibit II and through Exhibit UU.
Chairman Kiritsis addressed Exhibit KK, the letter from Attorney Branse regarding conflict of interest. He asked if any commission member is a member of Christ the King Parish, and whether they had any financial interest in this project by being a member of a brokerage or real estate firm or any membership otherwise. Chairman Kiritsis stated that he is not a member of this parish or any parish. He indicated that he does have members of his immediate family who are. Chairman Kiritsis stated that he has no financial interest in this project. Ms. Marsh stated that she is not a member of the church and has no financial connection. Ms. Cable indicated the same. Mr. Ames indicated that he is not affiliated with the church and has no financial interest either. Mr. Johnson stated
that he is not a member of Christ the King, although he is a member of another church in Town. He noted that he has no financial interest, direct or indirect.
Ms. Brown indicated that she spoke with Ron Rose regarding Marcy Balint’s (OLISP) letter. She stated that ordinarily Ms. Balint comments on the impact of a proposal to the health of Long Island Sound and the activities the State would like to promote there. Ms. Brown stated that Ms. Balint does comment on that, expressing concerns about the added density this proposal would allow. She noted that part of the letter goes into specific discussion regarding a septic design for the condominiums and Ms. Brown noted that this is not part of the current application. Ms. Brown noted that the same would be true for the letter from Mr. Scully.
Attorney Michael Cronin was present to represent the applicant. He noted that he agrees with Ms. Brown’s assessment of the letters from Mr. Scully and Ms. Balint. Attorney Cronin stated that there is not a site plan before the Commission for approval. He indicated that if the Regulation is adopted they will have to satisfy all requirements for a sanitary system.
Attorney Cronin stated that the issue of spot zoning has been kicking around throughout the hearing. He indicated that he was glad to see Attorney Branse address the issue conclusively. Attorney Cronin indicated that Attorney Branse advised the Commission that this is not spot zoning.
Attorney Cronin stated another issue discussed was traffic. He noted that again, this would be an issue with regard to a specific site plan approval. Attorney Cronin indicated that if required by the Commission at the time of site plan/special exception application, the applicant would be happy to get a traffic report. He noted that the church holds up to 1,000 people and did, at various times, create quite a bit of traffic.
Jeff Flower, project architect, stated that this particular site has frontage on three streets. He noted that access to the site could be obtained from any of these streets. Mr. Kiritsis noted that Mr. Flower is addressing a site plan, not a Regulation. Mr. Flower stated that anything done on this site would be a minor change on the overall traffic in an already busy area. He indicated that any issues on the sanitary system would be addressed by an engineer at the time of site plan/special exception approval.
Chairman Kiritsis asked for comments from the public. Hugh Fiore, resident of Old Lyme since 1988, stated that he has witnessed the growth of residential housing in the Town and feels that housing costs have become a large part of the average family’s budget. Mr. Fiore stated that before the Commission is a plan to create six affordable dwellings in an existing building in an area that the Town is trying to develop in an organized manner. He noted that the Town is fortunate to have these beach communities. Mr. Fiore indicated that he is in favor of this proposal.
Attorney Richard Haviland stated that he represents a few Old Lyme residents who are opposed to this proposed amendment. He presented a formal protest under CT General Statute 8.3b, which indicates that if a protest is filed as to a Zoning Change or Change in the Zoning Regulations, if owners of 20 percent of the lot area within a 500 foot circumference of the proposed developed formally file a protest, then the voting requirement for the decision is two-thirds of the Commission. Attorney Haviland showed a map of the property with a 500 foot circumference, identifying the properties within that circumference. He explained that the signatures of the people are part of the package, along with the street cards showing the lots square footage. Attorney Haviland stated that according to his
calculations, 26 percent oppose. This package was marked Exhibit WW. Attorney Haviland submitted his percentage calculations as part of this exhibit.
Attorney Haviland submitted a position paper (marked Exhibit XX), as to why the proposal should not be adopted. He noted that some of the issues have been brought up a number of times. Attorney Haviland explained that because adopting this proposal would be a legislative act, there is not 65 day rule that applies. He noted that the Commission may take as much time as they need to make a decision. Attorney Haviland stated that the Commission must, in their approval, state for the record how this proposal complies with the Plan of Conservation and Development. He indicated that if the Commission allows a greater density of development by adopting this proposed amendment, it would certainly affect sewer issues. Attorney Haviland stated that the applicant states in the application that they
should not have to put up garages. He stated that he performed an analysis on the size of the lot regarding coverage with and without garages. Attorney Haviland stated that putting garages up would exceed the coverage allowed in the R-10 zone. He indicated that if this proposal is approved, the seasonal homeowners in the area will want the Town to allow their properties to be used year-round also.
Mr. Johnson questioned how Attorney Haviland computed the number of signatures for the petition. Attorney Haviland explained that the Statute says 500 feet from the property lines so he took a 500’ foot circumference from the entire parcel. Mr. Johnson questioned whether Attorney Haviland subtracted out the roads to come up with the 26 percent. Attorney Haviland stated that he did not. He noted that when he calculated the total square footage that he had to have 20 percent of, he erred on the side of caution, meaning he identified an area larger than he actually needed. Attorney Haviland indicated that out of this total 500’ radius, he subtracted out roads and the subject parcel. He indicated that the area remaining, not quite 200,000 square feet, was multiplied by .20 to
get 40,000 square feet. Ms. Cable questioned whether Attorney Haviland had a copy of the entire Statute he is referencing. Attorney Haviland presented it to Ms. Cable. Ms. Cable questioned whether it addressed how a protest should be filed. Attorney Haviland stated that there is case law that says a protest can be filed any time prior to the decision being issued.
Sally Scully, property owner on Shore Acres Road, stated that she is opposed to the proposed zone change. She indicated that as a citizen and taxpayer she is concerned about her community and encouraged the Commission to re-read letters and replay the recordings of their fellow citizens who have come before the Commission to voice their well-reasoned and thoughtfully prepared opposition to the proposed zone change. She indicated that she believes the rules are made to be followed by everyone and the rules should not be adjusted or redefined in order to accommodate a few individual’s needs. Ms. Scully stated that the rules must be upheld for the betterment and the protection of the majority. She indicated that the applicants have not presented a compelling case for this Town to amend or make
an exception to the current Town Regulations to create a new section allowing the conversion of a non-residential building into dwelling units. Ms. Scully questioned if there is a compelling reason to change the Regulations for one person, one property, which will have a long-standing impact on the community. She stated that the proverbial “Pandora’s Box” has been mentioned by several individuals. Ms. Scully stated that the Town should proceed with extreme caution before making exceptions and/or revisions to its Regulations in order to appease a developer. She indicated that this Commission’s responsibility lies with protecting the interests of the majority of those to be directly impacted by this decision. Ms. Scully stated that it is evident by the shear volume of letters and speakers at the hearings, that the majority are opposed to it. She urged the Commission to reject this petition to amend the Zoning Regulations. Ms. Scully submitted her written statement which was
marked Exhibit YY.
Rosemary Lombard read a letter from Glen Semel, 68 Old Colony Road, in opposition to the proposal. This letter was marked Exhibit ZZ.
Andrea Lombard, 8 Hartung Place, submitted several letters for the record which she did not read. She indicated that the people helping to circulate the protest learned that it is significant that the seasonal people are not here yet for the season. Ms. Lombard noted that some even drove to Old Lyme to sign the protest. She stated that there would have been a much stronger outcome if this hearing was held in June or July. Ms. Lombard indicated that the people involved in the seasonal lawsuit against the Town did not want to sign the petition. She stated that it is her feeling that they are watching the Commission and will use this as part of their argument. Ms. Lombard noted that there are many properties of the same density that want to be year round. She indicated that this
project is much more than a community wanting to preserve a 100 year old place of worship. She noted that the density will have a big impact on the beach communities.
Rosemary Lombard stated that at the beginning of the hearing Mr. Kiritsis indicated that he does not have an affiliation with Christ the King Church. Mr. Kiritsis corrected Ms. Lombard and noted that he stated that he has members of his immediate family that are members of the parish. He reiterated that he is not a member of the parish and he has no financial interest in the activity. Ms. Lombard stated that if a member of his family was or is on the building committee for the church, she would see this as a conflict. She indicated that according to church law, the responsibility of debt for a parish is placed on the shoulders of its parishioners.
Attorney Cronin stated that he is familiar with State Statute 8.3b, but he believes it refers to changes in the Zoning Maps, not the Regulations. He noted that the 500 foot rule is in regard to a change in map or zone. Attorney Cronin stated that this proposal covers the entire R-10 zone, including the area around Rogers Lake. He indicated that even if it did apply, they are far short of 20 percent. Attorney Cronin stated that an existing structure being converted may not be able to have garage structures that meet all the Zoning Requirements, which is why they did not include this requirement as part of the proposal.
Attorney Richard Haviland stated that Statute 8.3b states change in Zone, Map or Regulation. He indicated that there is no question that this Statute applies. Attorney Haviland stated that from the beginning, this proposal has been presented as “about the chapel property.” He noted that one of the questions early on was how many properties the Regulation would apply to and it was answered that this was the only property. Attorney Cronin noted that in an earlier hearing the Zoning Enforcement Officer submitted evidence that there are eight properties that would be affected by this proposal. Mr. Kiritsis stated that it goes without saying that a Regulation change does not go to a particular parcel.
Attorney Haviland stated that in this decision the Commission is acting as a legislature by amending the Regulations. He indicated that under this type of review, the 65 days to make a decision does not apply. Attorney Haviland stated that he has submitted a case that addresses this issue.
Attorney Haviland stated that there is an unsigned letter from the CT Water Company that he would like to submit for the record (marked Exhibit BBB).
Attorney Cronin stated that there is a practical problem because there is a large building that is no longer a church. He noted it has been desanctified and is now just a building. Attorney Cronin stated that there are not many permitted uses for the structure. He indicated that he believes their proposed use is the highest and best use of the property.
Ms. Marsh stated that the Commission must determine the voting requirements before they take a vote. Chairman Kiritsis agreed but noted that they could contact their Attorney after the close of the Public Hearing.
A motion was made by Jane Cable, seconded by Steve Ames and voted to close the Public hearing for the Petition to Amend the Zoning Regulations to create a new Section 32.5.10, Conversion of a Non-Residential Building to Dwelling Units, Michael Cohen and Steven Wallet, applicants. Motion carried 4:1 with John Johnson voting against.
Steve Ames voted for Tom Risom in the above matter.
2. Site Plan/Special Exception Application to construct a dock, 2 North Road, Rob Shickel, applicant.
Rob Shickel was present to explain the application. He noted that the dock will not touch the right-of-way, which is shown as a cross-hatched area. Mr. Shickel stated that it will be above the tidal wetlands limit and reach out to another upland area that is an island. He noted that the walking path will be cleared, but there will be no structure. Mr. Shickel stated that the dock will have a fixed pier and a ramp reaching out to a float. He noted that the dimensions are as shown on the plan. Mr. Shickel stated that Section A is a walkway and is constructed from a lighter gauge of material and is only 3 feet wide. He noted that it is high enough that it will not impact the marsh in terms of shading. Mr. Shickel stated explained the track of the sun in relation to the project.
Mr. Shickel addressed Mr. Metcalf’s letter. He explained that he agrees with Mr. Metcalf’s comments and has no objections to it. Mr. Shickel submitted a letter from him to the Commission addressing these comments. Mr. Shickel read both Mr. Metcalf’s letter and his own. Mr. Shickel’s letter states that the no heavy equipment will be used to construct the walkway from the upland area to the island and instead the dock will be pre-fabricated of frames that can manually be carried onto the marsh and set in place and thereafter the decking will be continually applied to the frames. He notes that once the fixed pier is built from the barge, the ramp and float will be attached by use of cranes so that no heavy equipment is driven onto the marsh.
Mr. Shickel stated that the entire frame will be set into the marsh using an auger type of device so that there is minimal disruption to the marsh surface. He noted that three of four workmen could easily construct these frames outside the 50’ limitation and carry them down along the path. He noted that they are only going to be set in about 3 feet. Mr. Shickel stated that the material for the decking will probably be Trex or that type of material. He indicated that the applicants are extremely sensitive to chemical contamination. Mr. Shickel stated that the frames will have to be 6 x 6 pressure treated.
Mr. Johnson questioned whether Mr. Shickel is an engineer. Mr. Shickel stated that he is not a P.E. Mr. Johnson stated that he has worked in this area for forty years and putting the frames 3 feet into the ground will not work. Mr. Shickel indicated that if the Commission would like it deeper they could do that. He noted that it will then be a heavier structure. Mr. Johnson stated that he would like to discuss it with Connecticut River Dock and Dredge to hear their opinion. Mr. Shickel agreed that Mr. Johnson could do that.
Mr. Johnson questioned whether they would be using concrete to set the dock. Mr. Shickel stated that they will not be using concrete.
Norman Emerson, 6 North Road, stated that the address is not correct, as there is not a North Street in Old Lyme. He indicated that there is a North Lane and a North Road, not a North Street. Mr. Emerson stated that his property is immediately adjacent to this and he has lived in this area a little over 80 years. He indicated that they used to ice skate in the same area where the dock is proposed so it does freeze in the winter. Mr. Emerson stated that there is also mud. He reviewed the drawing to verify it was the same as the document he saw in 2004. Mr. Shickel stated that all the structure in Section A and Section B was approved by DEP. He noted that Section B includes the walkway, the fixed pier and the float. Mr. Emerson stated that the petition to the Zoning Commission
is for a dock. Mr. Shickel noted that the dock includes the Section A and Section B components.
Mr. Emerson stated that this dock will narrow the navigational area of the river considerably. Mr. Shickel stated that the navigation channel is to the west side of the river. He explained that the fixed pier terminates at mean low water as required by the DEP and the float is in an area of less than 1 foot water at mean low water. Mr. Shickel stated that at mean low water the channel has a depth of approximately two feet, but it is located thirty to forty feet away from the western end of the float.
Mr. Shickel stated that there will be an eight foot elevation on the deck of the walkway. He explained that the large amount of vegetation keeps ice formation down by absorbing a lot of solar energy. He noted that when ice does form in that area it tends to be very thin.
Mr. Emerson stated that he is concerned about the health of the wildlife. He noted that the nature conservancy is to the west and consists of many acres. Mr. Emerson stated that they have a few big blue herons and once had a white-faced owl. He noted that there are egrets, raccoons and possums.
Sally Scully, 11 Shore Acres Road, stated that she is speaking for herself and her mother at 15 Shore Acres Road. She indicated that she did not receive any notice from the DEP regarding this project. Ms. Scully stated that she was notified by the Zoning Commission about this hearing. She indicated that she agrees with Mr. Emerson’s comments and remembers the mud in that area. She asked the Commission to walk her property and view the wildlife. Ms. Scully stated that they need to preserve this area. She asked that the Commission not encourage this type of development.
Mr. Johnson stated that the Commission has not encouraged the applicant to come forward with this development; he noted that the applicant has applied as he has a right to do. Ms. Scully stated that she is asking the Commission to listen to the people opposed to the development.
Mr. Johnson made a motion to close the public hearing which Ms. Cable seconded. Ms. Brown reminded the Commission that there may have been an error in the advertisement and suggested that it be held open and the application be re-adertised. Ms. Cable agreed. Mr. Johnson stated that there is an issue of liability for the Commission because the representative for the owner is entitled to be paid for a second hearing. Ms. Brown explained that the Town did not make an error as the application states 2 North Street. Mr. Johnson withdrew his motion to close and Ms. Cable withdrew her second.
A motion was made by Tom Risom, seconded by John Johnson and voted unanimously to continue the Public Hearing for the Site Plan/Special Exception Application to construct a dock, 2 North Road, Rob Shickel, applicant, to the May 8, 2006 Regular Meeting and to re-advertise with the proper address.
3. Site Plan/Special Exception Application to construct a six foot fence in the front setback, 29 Neck Road, Brian and Kellianne Farnham, applicants.
Brian Farnham was present to explain his application. He noted that he would like to construct a 6-foot white cedar fence 104 feet along Huntley Road, beginning at the end of his property up to the current gravel driveway. Mr. Farnham stated that he would also like approval to add fencing on the back of the property because of the development abutting his property. He noted that he would also like approval for a third 20 foot section to neaten up the driveway.
Mr. Farnham stated that due to the wetlands, which are a large percent of his property, the area abutting was to be left alone but was cleared right up to the boundary line. He noted that he is under the impression that this will be returned to natural vegetation, but if not he would like to put a chain link fence in this area for security and privacy and also to contain any litter which may otherwise blow into his yard. He stated that the development he is referring to is a new building that will house a kitchen showroom. Mr. Farnham stated he is the only residential property within the triangle of land that is Neck Road, Huntley and Halls Road. He explained that the house is c. 1860 and he is trying to return it to its original glory.
Mr. Farnham stated that the chain link fence is designed with the frogs in mind and to eliminate the possibility of garage coming into their yard.
No one present spoke in favor of or against the application. Hearing no further comments, Chairman Kiritsis asked for a motion to close the public hearing.
A motion was made by John Johnson, seconded by Jane Marsh and voted unanimously to close the Public Hearing for Site Plan/Special Exception Application to construct a six-foot fence in the front setback, 29 Neck Road, Brian and Kellianne Farnham, applicants.
Chairman Kiritsis adjourned the Public Hearing at 9:45 p.m.
Respectfully submitted,
Susan J. Bartlett
Recording Secretary
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