OLD LYME ZONING COMMISSION
PUBLIC HEARING
Monday, March 11, 2013
The Old Lyme Zoning Commission held a Regular Hearing on Monday, March 11, 2013, at 7:30 p.m. in the Auditorium of Memorial Town Hall. Those present and voting were Jane Cable, Chairman, Jane Marsh, Secretary, John Johnson, Vice Chairman, Tom Risom (Regular Member), Ted Kiritsis (Alternate), Joan Bozek (Alternate) and Harland Frazier (Alternate).
Also present: Ann Brown, Zoning Enforcement Officer.
Chairman Cable called the Public Hearings to order at 7:33 p.m. She noted that the members seated for the first Public Hearing, which has been continued, are Jane Marsh, Jane Cable, John Johnson, Ted Kiritsis and Tom Risom. Chairman Cable noted that the voting members for other hearings will be noted.
1. Special Permit Application to allow renovation and modification of an existing convenience store building and minor reconfiguration of the existing parking lot; expansion of the existing retail convenience store space into the area currently occupied by (3) automobile repair bays. A walk in cooler will replace the existing shed at the rear of the building and a new 227 s.f. addition will be built at the west side of the building; there will also be a food take out use, in accordance with Sections 9.4 and 5.10.3 of the Zoning Regulations, on property located at 85 Halls Road, CPD Energy Corp., applicant.
Mark Smith with Two Design in New Britain, was present to represent the applicant. Jane Marsh read the list of new exhibits into the record (through Exhibit HH).
Mr. Smith stated that at the last hearing they addressed the comments of Ann Brown and Tom Metcalf. He submitted his response to these comments in writing and asked that it be made part of the record. Mr. Smith stated that most of the comments were requesting clarifications/notes to the plans. He submitted a revised set of drawings on which the corrections/clarifications were made. Mr. Smith stated that they have increased the planting islands to make it less inviting to tractor trailers. He indicated that they have also added no parking signs in the landscape islands. Mr. Smith stated that they changed the radii on the exit onto Huntley Road as suggested by Mr. Metcalf. He indicated that Mr. Metcalf requested a left-turn only sign onto Huntley Road which they have also added to
the plan. Mr. Smith, addressing Mr. Metcalf’s comments, stated that the revised plans also show: reduced curbing short of the roadway as to not impede plowing; the chain link fencing will be removed; and an air conditioner condenser and walk-in cooler condenser behind the building next to the dumpster.
Mr. Smith stated that it was questioned whether it was allowed within the Zoning Regulations to replace the existing shed with a walk-in cooler. He noted that it is up to the Commission’s interpretation, but reiterated that the walk-in cooler stays within the footprint of the existing shed, actually slightly smaller and gives a slightly larger setback to the street line. Mr. Smith stated that they are aware they need a DOT permit and feels it is minor work and the type that the DOT would act on favorably. He stated that the degree of paving was questioned, especially on the southeast side of the building. Mr. Smith noted that with the work they are doing they are actually reducing the pavement. He pointed out several areas on the site plan that are currently paved will become green
space. Mr. Smith stated that the planting plan has the seed mix noted as requested by Mr. Metcalf, and a note has also been added indicating that where pavement is being removed, unsuitable soils will also be removed. He indicated that the finished floor of the building has been added to the plan as a benchmark, along with a note indicating that the property line will be marked in the field prior to the start of work. Mr. Smith stated that they now show an anti-tracking pad at both entrances/exits. He stated that notes 2 and 3 on Sheet C-1 were revised to indicate that if there are any significant changes to the grade that would impact drainage or handicap access that the Town would be notified. Mr. Smith stated that they removed the note that indicated that the canopy, gas pumps and gas tanks would be removed. He explained that this is an old note that was overlooked and the canopy, gas pumps and gas tanks are all remaining.
Mr. Smith noted that they have received approval from the Inland Wetlands Commission, and noted that the septic system is in the upland review area. He stated that there was a question as to whether the septic system was designed to accommodate public restrooms and he noted that it has been designed to accommodate public restrooms. Mr. Smith stated that the existing monitoring wells are no longer needed and would be capped. Ms. Cable questioned the specific contaminants that the wells were being tested for. Scott Parker, replied that the well has been certified for public use by the Department of Health and will now have an ongoing testing and sampling program to ensure that it is potable.
Mr. Smith stated that they have not received comments from the Fire Marshal. Mr. Smith stated that there are two existing side-light poles which are being eliminated and the plans show a more colonial style fixture that provides five foot candles on the ground. He noted that the plans indicated that the floodlights on the building will be removed and show the removal of the drop down style canopy lighting replaced with flush-mounted LED lighting. Mr. Smith stated that the applicant will meet any bonding requirement of the Town.
Mr. Smith stated that they received a letter from Ann Brown dated January 9 requesting information on monitoring wells. He indicated that they submitted information about this at the last hearing and if there are remaining questions Mr. Parker can address them. He stated that the Zone was incorrectly noted as C-30 and has been changed to C-30S. Mr. Smith stated that they have added the footprint of the canopy to the floor area ratio in the Zoning Table. He noted that all ratios are still in compliance with the Zoning Regulations and the additional square footage did not increase the required number of parking spaces. Mr. Smith noted that the required number of parking spaces is 8 and they have provided 13 parking spaces.
Mr. Smith stated that they are proposing a 227 square foot addition to the building, which is already in a nonconforming location due to the required 60’ front setback; he noted that the lot does not have the required 150’ square; they are reducing the current coverage of 64 percent to 58 percent where 55 percent is conforming. He noted that the existing nonconformities are being reduced. Mr. Smith stated that the convenience store sales require a special permit. He explained that they are asking permission to add onto the building under Section 9.4, which allows additions to nonconformities, if it meets four requirements. He noted that one is that the proposal is a general improvement to the lot. Mr. Smith noted the reduced pavement, addition of green space, improvements to the
drainage, and the fact that they were removing the parking that encroached onto the roadway as improvements to the lot. He stated that the second requirement is that nonconforming signs and lighting be brought into a conforming or more conforming condition. Mr. Smith stated that the introduction of the colonial style lights and replacement of the drop-down canopy lights is moving in a more conforming direction. He stated that the third requirement is that adequate landscaping in the area required for setback up against a residential boundary line and noted that they are not up against a residential boundary line. Mr. Smith noted that the last requirement is that there be no increase in the nonconformity of buildings and other structures and noted that the building addition is in an area that is conforming, they are reducing lot coverage and have increased a setback from 27’ to 28’.
Mr. Smith stated that he believes they meet the criteria under 13B for the Special Permit. He stated that it is a commercial use surrounded by other commercial uses. He explained that they are residing the building with clapboards and white trim to give it a colonial style which is harmonious with the surrounding buildings. Mr. Smith stated that the landscaping and lighting will be more in harmony with the neighborhood. He noted that they have upgraded the septic system and have licensed the well with the State of Connecticut.
Ms. Marsh questioned the number of employees. Mr. Parker stated that there will be two employees in the store at all times. Ms. Marsh questioned whether the canopy is attached to the building. Mr. Smith indicated that it is not, it will remain in its current location.
Mr. Kiritsis stated that the application refers to the existing retail store. He indicated that to the best of his knowledge this has been a service station and not a retail or convenience store. Mr. Smith stated that it currently is a three-bay service garage and they are extending the retail area. Mr. Kiritsis questioned whether they have expanded their business in violation of the Zoning Regulations. Ms. Brown stated that there is a retail area where one pays for their gas and where they could purchase a limited number of retail items. Mr. Kiritsis questioned whether it is a retail store. Mr. Smith stated that they are requesting a special permit to create a convenience store use. Mr. Smith stated that the words used in the application may have overstated the current use.
Mr. Johnson questioned when the tank in the ground is scheduled to be replaced. Mr. Smith stated that they are not 30 years old and are not in need of replacing. He indicated that he will have to get the exact age of the tanks.
Chairman Cable questioned whether they were applying under Section 9.4 for the use or the construction. Mr. Smith stated that they are applying under 9.4 for the construction, and he noted that the Special Permit is required for the use. Ms. Marsh questioned whether any retail use was approved by the Town. Mr. Smith stated that he would have to research the files for that. Ms. Marsh stated that she does not believe there have been any approvals for retail use at this location. She indicated that it is bothersome to her that the application references expansion of a use that does not exist. Mr. Smith stated that his understanding was that 9.4 gives one an opportunity to alter or expand something with a dimensional problem such as this site. He stated that in the C-30S zone a retail
store is a permitted use and he understands that they are asking for a new special permit for the retail. Ms. Marsh stated that it is bothersome that they are asking for a whole new use on a nonconforming site and doing improvements under Section 9.4.
Mr. Johnson questioned whether the CPD Energy has other retail outlets. Mr. Smith replied that they do. Mr. Johnson asked about their pricing. Mr. Parker indicated that he cannot. Mr. Johnson questioned whether they consider themselves competitive in the marketplace and Mr. Parker indicated that they do. Mr. Parker stated that the tanks are not scheduled to be replaced until 2037. Mr. Johnson questioned when the tanks would be filled. Mr. Parker stated that the trucks fill the tanks 24 hours a day. He noted that this station typically receives gas every three or four days. Mr. Johnson questioned the drop time. Mr. Parker stated that it typically takes 30 to 45 minutes and they try to schedule deliveries when the store is closed.
Robert Tishow, MDM Transportation Consultants based in Auburn, Massachusetts, was present to recap the traffic presentation he gave at the January Public Hearing and to answer specific questions that arose at that time, which they have documented in a memorandum dated February 8, 2013. Mr. Tishow stated that the anticipate that over a one hour period in the morning the site will generate 100 directional trips and the majority of those trips would be drawn from the existing traffic stream, also called a pass-by trip. He explained that the site today draws 40 to 50 trips during a peak hour. He noted that a net increase of 23 vehicle trips per hour in the morning and 15 trips in the afternoon. He stated that the true increase is 10 to 11 cars in either direction. Mr. Tishow stated that there is
a comparable facility in Marlborough, Massachusetts on Route 2, and adjacent to a major highway, that has gas, a convenience store and Dunkin Donuts counter. He indicated that through a survey of this station, it was found that it generates approximately 100 vehicle trips per hour. Mr. Tishow noted a similar facility in Westbrook, Connecticut, immediately adjacent to I-95 and with easy on and off access to I-95, has gas, convenience items and a coffee counter. He stated that Essex Road, a four-lane roadway, carries 12,000 to 14,000 per day which is similar to peak summer traffic on Halls Road. Mr. Tishow stated that over a one hour period in the morning it generates 85 directional trips. He stated that these industry standards of vehicle trips are highly consistent with his own personal experience over his 26 year career. Ms. Bozek stated that Route 20 in Marlborough is also 4 lanes.
Mr. Tishow stated that the closest permanent counter is on Route 1 near the East Lyme town line and it counts 8,600 vehicles per day. He stated that the summer increase is approximately 32 percent and up to 76 percent higher than January and February. He noted that that is a substantial fluctuation. Mr. Tishow stated that they looked at another permanent count station on Route 184 in Clinton and two others along I-95, one in Branford and one in Groton. He noted that these count stations show seasonal swings, but not as dramatic as the one in East Lyme. Mr. Kiritsis questioned whether Mr. Tishow visited these other count sites. Mr. Tishow replied that he has not. He stated that this information is published by the DEP. He noted that the data is published monthly. Mr.
Kiritsis stated that the Route 1 counter location is in East Lyme near the Rustic Inn and is no indication of Halls Road in Old Lyme.
Mr. Tishow stated that they have the benefit of data on Halls Road from October of this year for the construction of the medical complex and they compared it with the late January data from the permanent counter and applied the seasonal factors and it was almost identical to the data of actual counts on Halls Road. He stated that all of the data is consistent and shows that the traffic estimates and counts are adequately portrayed. Mr. Tishow stated that the data suggests that this establishment will create 6 new vehicle trips per hour eastbound and six new vehicle trips per hour westbound, for a total of 12 new vehicle trips per hour during the day and 8 new vehicle trips per hour in the evening. Mr. Tishow noted that the new medical office facility created 30 new vehicle trips per hour during the day
and 6 new vehicle trips per day in the evening because they are a destination, not a drive-by type of operation. He noted that the data for the medical office facility is published data. Mr. Tishow stated that it was shown that the medical office facility would have minimal impact.
Chairman Cable noted that the proposed facility is located between two traffic signals and backs up to a one-way road and finds it hard to believe that people will be able to take a left out of the facility. Mr. Tishow stated that during the summer there will be longer cues and they have not looked at how long it will take to turn left out of the facility in July or August. He stated that 30 new vehicle trips per hour, spread over two exits, will not have a material effect on the conditions that exist today.
Mr. Johnson stated that there are frequent accidents between exit 70 and 74 on I-95 and when the traffic backs up people get off the highway and use Route 1 to bypass the highway. He questioned whether this has been considered in the traffic survey. Mr. Tishow stated that it has little or anything to do with the particular site, it is just a fact of the effect of traffic on I-95. He stated that the added activity from this project will not have a material effect on the traffic.
Mr. Johnson stated that this is the only gas station in Town. He indicated that if they lowered the price of gas 10 cents a gallon the place would be packed. Mr. Smith stated that they have owned the site for five years; the townspeople already know how the business is run. Mr. Johnson stated that they never had the convenience item base that can help them financially in lowering the price of gas. He indicated that the Commission has to look at everything in determining the effect the project might have on the roadways. Mr. Smith stated that people get gas at this location because they don’t want to go to adjacent Towns just to get gas.
Chairman Cable asked for questions or comments from the public.
Christina Patoka, 25 Library Lane, indicated that she is confused about the issue. She questioned whether the food service use required a different permit and whether the applicant should have requested that permit first and then requested the permit for the changes to the site. Ms. Peturba stated that the Commission should borrow a document reader from the high school because she could not see any documents referred to in the presentation. She indicated that it is difficult to comment on something when you cannot see it. Chairman Cable offered to take a ten minute recess so that audience members could review the exhibits. Ms. Peturba stated that she did not think it would be helpful at this point but indicated that in the future, if the Commission really wants the audience members to
participate, they need access to the same information that the Commission has access to. Mr. Smith stated that everything he presented has been submitted as an exhibit.
Mike Silverburg, Mile Creek Road, stated that he knows the facility in Westbrook and it is logistically a totally different site. He indicated that the Halls Road site is sandwiched between two traffic lights with a lot of other retail establishments and activity around it. Mr. Silverburg stated that the comparison is irrelevant. He stated that signs will go up on I-95 and people will get off the highway and get coffee and donuts here. Mr. Silverburg indicated that it is hard to believe that someone will invest the money in this facility to sell 12 more cups of coffee an hour. He stated that when people get off the highway late at night and find the facility closed they will go behind Treasures and take care of their business. He indicated that this is a problem. Mr. Silverburg
stated that he is in the insurance business and is aware of altercations that take place at establishments such as this.
Peter Garfield, Beaverbrook Road, stated that he believes the use should remain the same. He indicated that if this use becomes a reality it will affect the existing convenience store, the existing coffee shop and the business at the Big Y. He stated that the Town needs and appreciates these existing businesses.
Harry Sedgwick, 23 Ferry Road, stated that he is concerned about the impact to the other businesses. He questioned who would be served with this project and what benefit it would have to the Town. Mr. Sedgwick stated that the company is the only one who benefits.
Tom Gotowka, 25 Library Lane, stated that he looked at the company’s website today and they report that they own 200 of these facilities serving, java, Dunkin Donuts, hotdogs and deli sandwiches. He noted that excluding the hotdogs, these foods are already covered on Halls Road. Mr. Gotowka stated that it is important that they support the existing businesses and this establishment would jeopardize them. He stated that he experienced several traffic jams on Halls Road last summer as casino buses and cars tried to make it through the Town. Mr. Gotowka stated that he would not want additional cars added to that.
Sidney Williams, 15 Smith Neck Road, stated that statistics are something that can be manipulated. He indicated that if he was the owner of the business he wouldn’t want to do the project because the way it has been described this evening, no one will be coming. He stated that adding 6 cars each way per hour with a sign on I-95 is not a real number. Mr. Williams agreed that Halls Road is covered with donuts and coffee and a convenience store. He indicated that he does not want to see these establishments go out of business.
Michael Phelps, Old Lyme resident, stated that he is concerned about the traffic. He stated that there is a website I-95 Food, and if one looks at the website they can pick an exit and see what foods are available. Mr. Phelps stated that people using this site now one only sees the Old Lyme Inn and he doesn’t feel that draws any cars off I-95 for a quick stop. He stated that if there are 88 drive-by trips, those trips are drawing the business away from other establishments. Mr. Phelps stated that with 100 stops per hour, that is 1.5 to 2 per minute and in a 10 minute period one has 15 to 20 cars stopping there. He questioned whether sufficient parking is available. Mr. Phelps stated that easy on/easy off access will attract people. He stated that he believes this will also
increase crime. Mr. Phelps stated that he is concerned about franchises coming to Old Lyme and changing the character of it.
Stanford Brainerd, 6 Lyme Street, stated that a few years ago the Town did the church corner there was a great deal of discussion about turning radii and sight lines. He stated that the right turn onto Halls Road is tight and would be difficult for a panel truck much less a tractor trailer. He stated the same would hold true when they took a left out and proceeded to take a right onto Lyme Street, again, a very tight turn and then an immediate left onto I-95. Mr. Brainerd stated that he believes there will be substantial increased traffic. He submitted, as an exhibit, a photo of the sign at Exit 67 advertising the Westbrook facility (marked Exhibit LL).
Susan Duncan, 1 Sill Lane, stated that she is concerned about the signs on I-95 and is not sure if that was considered in the traffic study. She indicated that she is confused about some of the things used in the traffic report such as using the medical building as a similarity. Ms. Duncan stated that she is also confused about the statement that there will only be 10 percent new traffic. She questioned how that percentage was derived. Ms. Duncan stated that she is also concerned about added cars on the site who will have greater difficulty entering and exiting with the proposed curbing. She stated that she feels cars will back up into the facility.
Howard Gould stated that he did not hear anything regarding the legal basis for the application. He indicated that at the last hearing he questioned this and he has not heard a response. Mr. Gould stated that he is struck by the number of people attending this meeting and he does not think any of the comments from the audience at the last hearing were addressed. He questioned whether it was a change of use. Mr. Gould stated that 50 to 100 people have come to the hearings and are unanimously opposed to the proposal and they are being told they are just wrong. Mr. Gould stated that a number of the Commission members have identified that there is a question as to the change of the structure and the change of the use. He stated that Ms. Marsh indicated that there is no basis for calling
this an expansion of existing retail. Mr. Gould stated that the applicant should be requesting a change in use under the Zoning Regulations and existing law. He explained that the structure changes under 9.4 assume the continuation of a legal use, which is not what we have here. He indicated that he submitted a brief memo in writing and he still has no explanation. Mr. Gould stated that it is a change in use disguised as a change in structure.
David Dunkin, 1 Sill Lane, questioned whether the Public Hearing would be closed this evening because he would like a chance to look at the application more closely as he was not able to attend the last Public Hearing. Chairman Cable explained that if the Public Hearing were to be closed this evening if someone where to go to the Zoning Office and review the file, they would not have the opportunity to discuss it with the Commission members. She explained that if the Public Hearing were to remain open they would need consent from the applicant. Mr. Dunkin stated that he has many questions. He indicated that the application sounds like a change in use and he is not sure about the traffic study. Mr. Dunkin stated that he has worked with traffic folks before and the results of the studies are
what they want them to be. Mr. Dunkin stated that he doesn’t know why someone would make the investment in the facility for 6 to 12 additional trips per hour. He stated that he did not hear in the traffic study how people to use Halls Road, noting that many people use Halls Road as a short cut.
Ms. Marsh explained that it is not just 6 or 12 new customers. She explained that the existing customers that already get gas will come inside and get additional items or cars driving by already will pull in and purchase items inside.
Judy Enman, Treasures, submitted Exhibit NN. Chairman Cable questioned whether Ms. Enman ever found out who signed her certified mail card. Ms. Enman stated that she believes it was signed by someone at the Town Hall.
Patrick Looney, 2 Joyce Road, owner of Koffee Works, questioned whether the Commission contacted the State Traffic Commission to see if they need to review the application. Chairman Cable explained that that is at the peril of the applicant. Mr. Looney explained that his wife was an employee of the original Koffee Works and they purchased it because of the small town feel. He indicated that he knows almost every customer by name. Mr. Looney stated that this type of business is what belongs in Old Lyme. He stated that Andy invested in Old Lyme and then re-invested by enlarging the store. Mr. Looney stated that the Town has coffee and convenience on Halls Road.
Matthew McConnell Library Lane, stated that this is a moral question. He stated that when this company buys soda they are buying it for 200 stores; Andy buys it by the case for the convenience store. He indicated that when this company buys coffee, they buy it by the tractor trailer load. Mr. McConnell stated that the bottom line is that the existing businesses will not survive. He indicated that this is Old Lyme, not Clinton or Flanders, and Old Lyme does not need this type of facility.
Robin Sedgwick, 23 Ferry Road, stated that she thought she heard that the curbing has been added to dissuade tractor trailers from entering the site. She stated that the tractor trailers will not know that when they are up on I-95.
Amish Shock, Andy’s Deli and Market, submitted a petition and letters against the application.
Mr. Smith stated that the life-cycle of this business is typical of what is happening nationwide. He indicated that there were three service garages in Old Lyme and two have already converted and added convenience stores. He indicated that it is the business model of today to make it work financially. Mr. Smith stated that the company has owned it for five years and they would like to invest in it and there has to be some rate of return. He noted that this proposal would be the best use for the site. He stated that they are doing many great improvements on the site, including landscaped items, a new septic, new pavement with lines for parking, etc. Mr. Smith noted that this is a large investment on a site that needs improvement.
Ms. Gotowka, 25 Library Lane, questioned whether this is a change of use application. Ms. Brown stated that it has been the practice of the Commission to handle two applications simultaneously. She explained that there is an application for the site changes and there is an application for the change of use on the site.
A motion was made by John Johnson, seconded by Ted Kiritsis and voted unanimously to close the Public Hearing on the Special Permit Application to allow renovation and modification of an existing convenience store building and minor reconfiguration of the existing parking lot; expansion of the existing retail convenience store space into the area currently occupied by (3) automobile repair bays. A walk in cooler will replace the existing shed at the rear of the building and a new 227 s.f. addition will be built at the west side of the building; there will also be a food take out use, in accordance with Sections 9.4 and 5.10.3 of the Zoning Regulations, on property located at 85 Halls Road, CPD Energy Corp., applicant.
2. Special Permit Application/CAM Application to allow installation of a 100 sq. ft. wood floating dock with hinged ramp spanning from the path head stone of the float in accordance with Section 4.3.2.a of the Zoning Regulations on property located at 258 Whippoorwill Road, Paul Carroll, applicant.
Ms. Marsh read the Legal Ad as published in the New London Day. She also read the Exhibit List for the record.
Ms. Brown questioned whether the address is 258 or 258-1 Whippoorwill Road. Mr. Neilson stated that to his knowledge it is 258 Whippoorwill Road.
Keith Neilson, Docko, stated the project is a small recreational boat dock. He noted that the project received its DEP Permit. Mr. Neilson stated that there are no coastal resources affected by the project. He explained that the drawing shows the two shores of the river and the 25 percent encroachment limit for this type of project. Mr. Neilson stated that the drawing shows the lower corner of the property adjacent to the Blackhall River. He noted that there are two options for the ramp, one is to use a 15’ ramp and a very short pier attached to it by a stone header and the other is that it could be a full hinged ramp with no stone. Mr. Neilson stated that the floating dock will be held in place by steel pipes.
Mr. Neilson stated that the project has been reviewed and approved by the Harbor Management Commission and the Corps of Engineers. He noted that Marcy Balint, DEP, stated her approval of the Coastal Site Plan in her letter.
Mr. Neilson stated that there is a minimal work scope in the water, just driving the steel pipes. He noted that there will be no electricity or lights on the dock.
Chairman Cable stated that in addition to the four regular members, Ms. Bozek will be seated.
No one present spoke in favor or against the application. Hearing no further comments, Chairman Cable asked for a motion to close the Public Hearing.
A motion was made by John Johnson, seconded by Tom Risom and voted unanimously to close the Public Hearing on the Special Permit Application/CAM application to allow installation of a 100 sq. ft. wood floating dock with hinged ramp spanning from the path head stone of the float in accordance with Section 4.3.2.a of the Zoning Regulations on property located at 258 Whippoorwill Road, Paul Carroll, applicant.
Chairman Cable adjourned the Public Hearing at 9:50 p.m.
Respectfully submitted,
Susan J. Bartlett
Recording Secretary
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