MEMBERS PRESENT: Chairperson Stephen Wagner, Marjorie Anthony, Thomas Berstene, Terri Dickey-Gaignat and Sandi Jeski
ALTERNATES PRESENT: Tim Moriarty
Paul Oates sitting for Terri Dickey-Gaignat
STAFF PRESENT: Town Attorney Barry Guliano arrived at 7:35 p.m. and Debbie Reid, Recording Secretary
The meeting was called to order at 7:06 p.m. Chairperson Wagner explained that the purpose of this meeting is to deliberate on appl. #2596-03 – John J. Mitchell. There are legal issues that will need to be addressed by the Town Attorney.
Town Attorney Barry Guliano came before the Board. He explained that in each Commissioners envelope, there was a packet geared towards the Mitchell application. This packet would also be very helpful for later applications.
Town Attorney Guliano reviewed the questions from the Commission
What is the difference between a non-conforming use and a variance?
Town Attorney Guliano stated that a non-conforming use should not be extended, but can be expanded, as long as a business is expanding on what they already are doing as a business and not starting a new function. A non-conforming use, are uses exempt from regulation by statute or as a result of sovereign immunity. A variance is an authorized illegal use.
What is the applicant seeking?
There is no such thing as a modification of a variance. Town Attorney Guliano stated the applicant could be asking for: 1) an increase of an old variance, which would essentially be a new variance; or 2) seek modification of a condition of an existing variance. If the Board decides that there is an increase of an old variance, the Board would have to deny because ZBA is not allowed to act on uses because it is prohibited in the zoning regulations. Town Attorney also informed the Board that in his opinion, this is not a non-conforming use because a variance was granted on this property in 1976.
Two conditions need to be met in order to grant a variance:
The variance must not effect the comprehensive zoning plan; and
There must be a hardship on the property.
Second House
On the second house, conditions can be set. The hardship has to be found on the property where the house is being placed. There is nothing special on the property that would create a hardship for this request. A hardship doesn’t exist on the property until the house is placed on the property.
A Commissioner asked, if the house were destroyed when getting moved, could another house be placed on the property? Town Attorney stated that another house could be placed on the property. Conditions can be imposed, but there is a risk that the condition would not be enforceable.
There are two ways which the buffer (property line) could be conditioned:
Property has to be changed before the variance takes effect; or
2. Approve a variance, but can be voided if change doesn’t take place.
Commissioner Wagner explained that three conditions would need to be placed on this variance:
Transfer of property to the Senior Residence Development;
The Senior Residence Development and Mitchell Fuel will need to have a shared driveway agreement and;
Site plan approval by the Planning & Zoning Commission.
Commission members discussed at length the buffer requirements on the Mitchell property.
Chairperson Wagner asked Commissioners Berstene and Oates to draft motions they felt the Commission could deliberate on at the next scheduled meeting.
ITEM: Adjournment
Motion to: adjourn the meeting at 9:00 p.m.
Was made by Commissioner Anthony
Seconded by Commissioner Berstene
The motion: carried
The vote was as follows
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Deborah W. Reid, Recording Secretary
Zoning Board of Appeals
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