Old Lyme CT - Zoning Commission Minutes Special Meeting 04/02/2013

Zoning Commission Minutes Special Meeting 04/02/2013

MINUTES

OLD LYME ZONING COMMISSION

SPECIAL MEETING

Tuesday, April 2, 2013

The Old Lyme Zoning Commission held a Special Meeting on Tuesday, April 2, 2013 at 7:30 p.m. in the Auditorium of Memorial Town Hall.

The Meeting convened at 7:30 p.m.; those present were the following members: Jane Cable, Chairman, Jane Marsh, Secretary, Tom Risom (Regular Member), Joan Bozek (Alternate not seated), Harland Frazier (Alternate) and Ted Kiritsis (Alternate). Also present: Ann Brown, Zoning Enforcement Officer Absent: John Johnson, Vice Chairman, Pat Looney (Regular Member).

Chairman Cable called the meeting to order and then summarized the proposal, the questions and issues surrounding the proposal. Some of the issues raised were: 1) whether the use was not allowed legally prior to the application; 2) the retail aspect needed to be clarified; 3) the question of whether this is a change in use or an expansion in use; 4) what is the definition of retail?; 5) has there been an expansion in error? and 6) is it legal under Section 9.4 to change the use or can you only change structures or site development?

Tom Risom noted that Section 11 addresses gas stations and the retail use at a gas station. Section 11.8.8 states that “Convenience store retail trade shall be permitted as an accessory use, provided that: . . . a. adequate vehicular and pedestrian traffic flow patterns are established which prevent conflict with gasoline and service patrons; b. adequate parking for the additional retail trade use is provided in accordance with Section 18. . . . d. there shall be no seats, stools, tables, or other facilities for the on-site consumption of food; . . .”

Jane Marsh stated that this is a non-conforming site and the Commission doesn’t have to change the non-conformity even if it would improve a structure. J. Marsh noted they also don’t have to approve a Special Permit that would allow a use change.

Joan Bozek asked if this proposal was a good idea? Is it appropriate to the site and the neighborhood?

Jane Cable reads Section 13.B.2.1 as well as 13.B.4. (character) and then 13.4.7 (access) and appropriateness. Cable stated the criteria for the Special Permit are in Section 13 and Section 9.4 deals with structures and site development.

Tom Risom stated that under Section 9.4 the Commission should evaluate the net non-conformity.

Jane Marsh stated that to her, Section 9.4 and the change of use are related in this application. She noted that the change will attract more traffic. Ann Brown also stated that Section 9.4 and the change in use are connected in this application.

Bozek stated that Section 9.4 is used for structural changes and building changes and (all agree it is not used for use changes).

Tom Risom stated that Section 9.4 allows changes in site development. Section 9.4 is making it better but the change in use mixes it up. The Commission further discussed “adding takeout/adding or beginning convenience store use”.

Ted Kiritsis stated that this proposal would hurt other businesses in the area. Joan Bozek stated that there is not enough information or detail on the takeout area. She stated it fails to meet the detail required in the regulations. A. Brown reviewed the floor plans with the Commission, which demonstrated the applicant did provide detailed plans in both the take out and convenience store areas.

A Motion to APPROVE was made by T. Risom, seconded by H. Frazier, as follows:

Whereas, the Zoning Commission has received a for Special Permit Application dated December 6, 2012 to allow renovation and modification of an existing convenience store building and minor reconfiguration of the existing parking lot, also the existing retail convenience store space will be expanded 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. The following attachments accompanied the Special Permit Application: list of abutters, Statement of Use, Wetlands Agenda and copy of the Deed; Engineering Report prepared for 85 Halls Road, by TO Design, LLC dated December 6, 2012; Proposed Filling Station Improvements, list of drawings: Cover Sheet; Improvement Location Survey property of Leon W. Machnick successor trustee care of CPD Properties Inc., dated August 17, 2012 prepared by Anthony Hendricks L.S., LLC, scale 1” = 20’, sheet 1 of 1; Site Plan dated 12/6/2012 prepared by TO Design LLC, Sheet C-1; Grading, Drainage and Erosion Control Plan dated 12/6/2012 prepared by TO Design LLC, Sheet C-2; Planting Plan dated 12/6/2012 prepared by TO Design LLC, Sheet C-3; Site Details dated 12/6/2012 prepared by TO Design LLC, Sheet C-4; Site Details dated 12/6/2012 prepared by TO Design LLC, Sheet C-5; Sedimentation and Erosion Control Notes, Narrative and Details dated 12/6/2012 prepared by TO Design LLC, Sheet C-6; Septic System Plan dated 12/6/2012 prepared by TO Design LLC, Sheet SEP-1; Existing Floor Plan and Building Elevation dated 12/6/2012 prepared by TO Design LLC, Sheet A-1.0; Proposed Floor Plan and Building Elevation dated 12/6/2012 prepared by TO Design LLC, Sheet A-1.1, all known as project number: 5559; and all other submissions in the Exhibit List subsequent to the initial filing.

Whereas, the Zoning Commission has held a duly noticed public hearing on January 14, 2013, and March 11, 2013, and the Commission has had an opportunity to hear testimony from the public and from the applicant; and

Whereas, the Inland Wetlands and Watercourses Commission has determined that an administrative permit can be issued (and was issued) by the Wetlands Officer for this project; and

Whereas, the proposed use is allowed by Special Permit, in accordance with Sections 9.4 and 5.10.3 of the Old Lyme Zoning Regulations, the Commission finds that the applicant has provided sufficient evidence to demonstrate compliance with the technical provisions of this section.

Whereas, the Commission has considered:

a. the proposed construction shall result in a general improvement of the Lot with regard to safe access, suitable drainage and adequate landscaping;

b. Nonconforming Signs and lighting shall be brought into a conforming or more nearly conforming condition;

c. adequate provision shall be made for landscaping in the area required for setback from a Residence District boundary line; and

d. there shall be no increase in the Nonconformity of Buildings and other Structures and site improvements; and

Whereas, the Commission finds that the applicant has provided sufficient evidence to demonstrate compliance with the technical provisions of Section 13A and Section 13B of the Regulations with the following modifications required to be added to the final plan:

1. A “Left Turn Only” or “One-Way” sign should be placed for exiting vehicles.

2. The west driveway edge corner radius should be increased to accommodate vehicles turning left onto Huntley Road. The radius should consider vehicles that will utilize this access; refuse pick-up, delivery, etc.

3. Curbing should terminate within the driveway limits. Extending the curbing along Huntley Road would introduce an impediment to snow plowing.

4. The placement of new curbing and associated work at the northeast driveway entrance adjacent to Halls Road is within the State right-of-way and requires permitting by the Connecticut Department of Transportation. The applicant should apprise the Commission of their review.

5. A parking space abutting the northeast side of the building is proposed. The applicant should consider providing some type of buffer, separation or sidewalk between the building and parking space.

6. To facilitate construction and avoid any misunderstanding as to what is proposed, seed mix and topsoil specifications must be provided. Reference: General Note 7.

7. A note must be placed on the plan stating that in areas where existing paving will be “converted” to lawn or landscape areas, the existing pavement and unsuitable soils shall be removed prior to placement of topsoil.

8. Painted enter and exit arrows to be placed at the site entrance/exit pavement to/from Halls Road. Also, all parking spaces should be delineated with painted lines.

Sheet C-2

1. To facilitate construction, a project bench mark should be shown on the plan.

2. Due to the proximity of the proposed drywell catch basin to the west property line, the property line must be clearly marked prior to construction to avoid accidental encroachment on the adjacent property. Considering the on-site soils as noted on Sheet SEP-1, care will need to taken during excavation for the placement of the drywell catch basin to avoid caving of the excavation beyond the property limits.

3. The placement of an anti-tracking pad on the south side of the building may not be necessary if existing pavement is to remain. An anti-tracking pad should be installed at the driveway entrance off of Huntley Road.

4. Notes 2 and 3 indicate that some field changes/adjustments may occur in site grading and that the owner’s representative shall make the determination of the changes; any changes that may adversely affect the intent of stormwater drainage or handicap access must be reviewed and approved by the design engineer and the Town.

Sheet SEP-1

1. The inclusion of the White Knight microbial generation device, MK-78, as part of the wastewater treatment system is considered an “alternative wastewater treatment system” and as such will require review and approval by the Connecticut Department of Energy and Environmental Protection (CTDEEP). The applicant should apprise the Commission of the status of the CTDEEP review of this matter.

2. Section 11.8.8.e. of the Zoning Regulations is applicable for the proposed facility use. As such, the Commission should determine if public restroom facilities should be provided for customers. If public restrooms are required, the applicant should verify that the septic system will accommodate them.

3. The monitor wells in the area of the proposed leaching system were placed to sample groundwater for contaminants. The applicant must apprise the Commission of the disposition of groundwater monitoring. Additionally, if there is no further need for the monitor wells, provisions for “sealing” the wells in the area of the leaching system should be addressed.

4. The existing septic system should be abandoned in accordance with Public Health Code requirements.

5. A bond, in an amount to be confirmed by the Commission engineer, for erosion and sedimentation control measures, must be submitted prior to recording of the mylar plan.

6. An As-Built plan shall be submitted to the Zoning Enforcement Officer prior to final Certificate of Zoning Compliance approval.

Whereas, the Commission finds that the applicant has demonstrated compliance with the General Standards of Section 13B, 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

Now, therefore be it resolved that the Old Lyme Zoning Commission grants approval for a Special Permit Application dated December 6, 2012 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, the addition of a walk in cooler replacing the existing shed at the rear of the building and the addition of a new 227 s.f. addition at the west side of the building, and the addition of takeout food use on property at 85 Halls Road, CPD Energy Corp., Applicant, with the above mentioned conditions/modifications. In favor: T. Risom Opposed: J. Cable, J. Marsh, T. Kiritsis, H. Frazier Abstaining: None The motion was DENIED. 1-4-0

Tom Risom stated the following reasons for his motion to approve:

It meets the intention of Section 9.4 because there is a net reduction of non-conformity and it improves the site development.

2. It expands the retail into the service bays and the changes in the building are minor. It remains essentially the same building and the net impact of the building change is insignificant.

3. The change in uses will not create a significant increase in traffic.
4. The proposal makes good use of the state of the art of where we are going with gas stations.
5. The take out use whether it’s a brand or not will not have the egregious parking and traffic impact feared by the public.
6. The impact on Halls Road on similar business is not the business of the zoning commission. The Zoning Commission is not the Economic Development Commission and the impact on similar businesses should not be considered.
7. All technical issues have been addressed.

Harland Frazier stated that he is voting against the application because of items in Section 13 and Section 13.B.4 and he feels the changes are not appropriate.

Ted Kiritsis is voting against the application because the proposal is not in harmony with the town and what it wants. He also noted that he is concerned for safety impact, specifically traffic, as well as the impact on existing businesses in the area.

Jane Marsh is voting against the application because she felt that the internal traffic pattern is not adequate for any uses. The modification and intensification of the use with less than adequate traffic flow is not an improvement. The Plan of Conservation & Development discourages uses that attract people from out of town to the use. There is an approved use on the site and that is the gas station only. The current retail has been added over time, expanded and is relatively new. The gas station is the starting point. The items sold were car things which are accessory to a gas station which is the primary use. There has been no Zoning Commission approval for food, retail and coffee. The base line is as previously described. The traffic and how the property is currently used are inadequate. This plan does not correct the inadequacy and adding uses makes it worse and more intense.

Jane Cable is voting against the application. She stated that the Plan of Conservation & Development states that commercial development should be compatible with the town character and serve local residents. The POCD also states business should be oriented towards residents and not highway travelers or regional users. The current project is to attract interstate travelers. Section 13 of the Zoning Regulations states for a Special Permit considerations which involve appropriate, harmonious and desirable uses. Special Permit evaluates whether the use is in character. This proposal is not in harmony with other business.

Traffic and access on Halls Road during summer increases more than the 35 percent as stated in the traffic report. Also tractor trailers are equivalent to approximately 4 cars and their effect is a lot greater than a single automobile. A left turn leaving that site is currently impossible and she believes that the traffic increase will be more than 35 percent and therefore disagrees with the traffic study.

A Motion to DENY was made by J. Marsh, seconded by T. Kiritsis, as follows:

Whereas, the Inland Wetlands and Watercourses Commission has determined that an administrative permit can be issued (and was issued) by the Wetlands Officer for this project; and

Whereas, the proposed use is allowed by Special Permit, in accordance with Sections 9.4 and 5.10.3 of the Old Lyme Zoning Regulations, the Commission finds that the applicant has not provided sufficient evidence to demonstrate compliance with the technical provisions of this section;

Whereas, the Commission has considered whether:

a. the proposed construction shall result in a general improvement of the Lot with regard to safe access, suitable drainage and adequate landscaping;

b. Nonconforming Signs and lighting shall be brought into a conforming or more nearly conforming condition;

c. adequate provision shall be made for landscaping in the area required for setback from a Residence District boundary line; and

d. there shall be no increase in the Nonconformity of Buildings and other Structures and site improvements; and

And the Commission has found that:

1. The proposal does not comply with the following Sections of the Old Lyme Zoning Regulations: Section 9.4, Modification of Non-Conformity To Achieve Improvement; Section 13B.2.1, Purpose; Section 13B.4.4, General Standards – Character; Section 13B.4.7, Access and Section 13B.4.8, Traffic Access;

2. Plan of Conservation and Development (not consistent with); and
3. Questions regarding traffic study (members disputed the accuracy of the traffic study).

Whereas, the Commission finds that the applicant has not provided sufficient evidence to demonstrate compliance with the technical provisions of Section 13A and Section 13B of the Regulations;

Whereas, the Commission finds that the applicant has not demonstrated compliance with the General Standards of Section 13B, in particular that the proposed use, buildings and other structures and site development are not adequately 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;

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 denies approval for a Special Permit Application dated December 6, 2012 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, the addition of a walk in cooler replacing the existing shed at the rear of the building and the addition of a new 227 s.f. addition at the west side of the building, and the addition of takeout food use on property at 85 Halls Road, CPD Energy Corp., Applicant. In favor: J. Cable, J. Marsh, T. Kiritsis, H. Frazier Opposed: T. Risom Abstaining: None The motion passed. 4-1-0

T. Risom cites his previous reasons which he detailed in the motion to approve and specifically feels the site is improved under Section 9.4 and there is no traffic impact.

J. Cable, J. Marsh, T. Kiritsis and H. Frazier cited the following as reasons for denial:

1. Plan of Conservation & Development

2. Zoning Sections 13.B.2 and 13.B.4 and 13.B.7.4.8 and

3. Section 9.4 is not met because of the internal traffic patterns.

There was no further discussion and a motion to adjourn was in order.

A Motion was made by J. Marsh, seconded by H. Frazier to adjourn the April 2, 2013 Special Meeting. No discussion and a vote was taken. In favor: J. Cable, J. Marsh, T. Risom, T. Kiritsis, H. Frazier. 5-0-0 The motion passed unanimously and the meeting adjourned at 8:55 p.m.

Respectfully submitted,

Ann C. Brown, Acting Clerk