MEMBERS PRESENT: Chairperson Stephen Wagner, Thomas Berstene, and Teri Dickey-Gaignat
ALTERNATES PRESENT: Tim Moriarty sitting for Joel Nadel
Ronald Banks sitting for Sandi Jeski
Chairperson Wagner called the meeting to order at 7:30 p.m. The Recording Secretary read the legal notice as published in the newspaper
Appl. #2636-05 – Marylou and Susan Kupchunos, 178 Graham Road, A-20 zone.
Town Attorney Barry Guliano explained that the Town would be retaining an Attorney to represent the Zoning Board of Appeals as he represents the Zoning Enforcement Officer. This proceeding should allow the appellant to explain their case first, then the Town and the Zoning Enforcement Officer. In both instances there should be time allowed for cross-examination. The public should then be allowed to speak. The appellant will then be allowed rebuttal. The public hearing should be kept open in order for the attorney being retained for the Zoning Board of Appeals to examine all evidence and give his opinion to the Board. This hearing involves a warehouse on Graham Road. It is the Town’s opinion that agricultural use on this property is appropriate, but uses beyond agricultural have been taking
place on this property. The appellant claims that uses beyond agriculture have been going on for years, even prior to zoning. Therefore it is their stance that they have the right to continue the use of the property as it has been used.
Attorney Gerlt came before the Board to represent his application. He explained that this is an appeal from the Zoning Enforcement Officer’s cease and desist order. Attorney Gerlt stated that his client has a right to due process and to this appeal as owner of the property. If their right to use property is impinged or eliminated, the applicant will suffer financial harm. Attorney Gerlt asked the Zoning Enforcement Officer to go through actions that she has taken.
Answering questions from Attorney Gerlt, Ms. O’Connor explained that her title is Zoning Enforcement Officer. She has held this position since April of 2002. She reports to Marcia Banach, Director of Planning. Ms. O’Connor told the Board that the letter of October 29, 2004 was an enforcement order sent to the applicant because it was felt the barn at 178 Graham Road is being used for other purposes other than the intended agricultural use. Prior to this letter, two violation notices have been sent to the owner of 178 Graham Road. The Town had received correspondence from Attorney Gerlt and Attorney Cummings, (Attachments A and B). After receipt of these letters, this issue was discussed with Town Staff and Town Attorney, but review of tax records or discussions with Attorney Gerlt, Attorney
Cummins or the property owner never
happened. After examination of field cards, it was determined that the barn was constructed in 1930 and zoning regulations were adopted in 1938. There have been two complaints received by the Town from abutting neighbors regarding the use of property at 178 Graham Road since Ms. O’Connor has been the Zoning Enforcement Officer. The complains are regarding the property being used for purposes other than the intended agricultural use. Prior to these letters, two violation notices had been sent to the owner of 178 Graham Road. Since receiving complaints there has been observations made at this property and it has been determined that they are not an agriculture use. After receipt of the letters from Attorney Gerlt and Attorney Cummings, there were discussions with Town staff and town
Attorney.
Town Attorney Barry Guliano did cross-examination after questions by Attorney Gelrt were complete. Ms. O’Connor responded to these questions and indicated that after both letters from Attorney Gerlt and Attorney Cummings were received, they were given to the Town Attorney. Because there was potential for litigation, Ms. O’Connor was advised to have no interaction with the applicant or any Attorneys, everything would be done through the Town Attorney’s Office.
Attorney Gerlt came before the Board to represent this application. He explained that this building was built in 1930. The main function at this time was agriculture. Prior to 1935, the business became more of a tobacco plantation with other business that they could diversity into because of the Depression. They began developing housing at this location. In addition the warehouse served as a consignment warehouse as well as a storage facility for businesses in Hartford. The property was conveyed from Stein H. Welles in November of 1945 to William Anderlot. In April of 1958 Mr. Anderlot conveyed the property to the Kupchnos Brothers. Walter & Paul Kupchnos took title in June of 1983. The property was then conveyed to Albert and Walter Kupchnos who conveyed the property to their
wives, Marylou and Susan. Attorney Gerlt read two letters into the record. One from the South Windsor Chamber of Commerce (Attachment C) and another from Furnace Brokers Inc., dated January 30, 2004 (Attachment D). Attorney Gerlt then presented eight affidavits into the record (Attachments E-L).
Answering questions from the Commission, Mr. Alan Kupchnos explained what the term “grade the warehouse first” meant that the potatoes in this warehouse would be taken care of prior to any other warehouse because the insulation was not sufficient.
Attorney Gerlt stated that the Town has taxed this warehouse as an industrial building, which has occurred since the 1960’s. This property has always been used for both agricultural and non-agricultural use.
Mr. Alan Kupchnos came before the Board. Mr. Kupchnos stated that this is a warehouse not a barn. He then presented a history of the uses that have occurred at this location. Mr. Kupchnos then explained how a potato barn differs from the structure that is at this location. Mr. Kupchnos presented the Board with an activity report from the 1950’s and a shipping ledger from 1979. These were presented in order to show the Board that there was a fair amount of activity happening at 178 Graham Road.
Answering questions from the Board, Mr. Kupchnos explained that an addition was necessary because the potato industry changed around 1967 or 1968. Potatoes could not be sold unless they were washed and a washing area was necessary. The potato business is seasonal and during the times when potatoes were not being processed in the warehouse was used for additional activities such as storage. After Mr. Alan Kupchnos and his brother purchased the building, Alan approached Town Attorney Ralph Alexander and explained what they wanted to do with the warehouse. Attorney Alexander said that if it is a warehouse it could be used for storage and that it is not limited to agriculture.
Answering questions from Attorney Gerlt, Mr. Kupchnos explained that when he asked Town Attorney Ralph Alexander for his opinion, he gave him a description of what the warehouse had been used for in previous years.
Answering questions from Town Attorney Guliano, Mr. Kupchnos answered that anything that happened in the warehouse in the 1930’s was information that he had received from his uncles and father. Walter Kupchnos purchased the property in 1983 and discussion with Town Attorney Ralph Alexander were prior to the purchase, but nothing was put into writing.
A lengthy discussion was held regarding the Assessor’s field cards. There were questions regarding the dates on the cards. Town Attorney Guliano suggested that these questions be answered by the Assessor. Staff would request the Assessor to attend the next meeting.
No one from the public spoke in favor to this appeal.
In opposition
Mr. Leonard Glasser of 154 Graham Road came before the Board to speak in opposition. He stated that he has never seen the amount of traffic that has been alleged to have occurred at this location. Mr. Glasser explained that he is a Supply and Service Officer with the military and his specialty is warehousing. Mr. Glasser also explained that he was a meter reader in the area and never saw the activity as it is presently. In years prior to 2001 there was very limited activity at 178 Graham Road.
The property at present has trash and a great deal of noise is generated on-site. Up until 2001 there were no problems there. Mr. Glasser stated he would like the barn to remain agricultural.
Answering questions from Attorney Gerlt, Mr. Glasser stated that he is opposed to this application and any commercial uses on this property. Mr. Glasser told Attorney Gerlt prior to retirement from Northeast Utilities he worked usually from 8:00 am to 4:30 p.m. Mr. Glasser did meter reading from 1967 until 1970 and part of his route was on Graham Road. Mr. Glasser explained that the size of trucks have changed since 1935, but he has never seen a 53-foot trailer going down the roads in Connecticut.
Mr. Robert Whitlock of 21 Mark Drive came before the Board to speak in opposition to this appeal. He explained that his backyard borders 178 Graham Road. When Mr. Whitlock purchased his property three years ago, the condition of the property at 178 Graham Road was not as it is today. Currently there is a lot of unrestricted activity and noise at the property. Mr. Whitlock stated he was told by an employee at 178 Graham Road that an RV camper and boat at the property were for sale. There has been an old army truck parked on the property for approximately six moths. Mr. Whitlock gave into the record an assortment of pictures he had taken of the property at 178 Graham Road.
Answering questions from Attorney Gerlt, Mr. Whitlock explained that he is concerned about truck traffic because he has two young children. There was a discussion held on what items were on the property at 178 Graham Road. Mr. Whitlock said that the warehouse was there when he purchased his property, and he had not inquired about the warehouse at the time of purchase because he thought it was an abandoned warehouse. There are no for sale signs on the RV or boat and he has not had an appraisal done on his home, but believes the property at 178 Graham Road has brought his property value down.
Ms. Jackie Jones of 31 Locust Street came before the Board to speak in opposition to this appeal. She explained that her entire back property line borders the Kupchnos land. She stated that she does not have the view of the activities taking place, but she can hear them. There are boats on trailers, RV trailers, and an old jeep in the yard presently. The property needs to be enforced on however the property is zoned and would expect the Town to ensure that.
Mr. Steven Roy of 39 Locust Street came before the Board to speak in opposition to this appeal. He stated that his property abuts the property where the warehouse is located. He stated that he has seen and heard the activities that take place at 178 Graham Road. The property is presently unkempt with vehicles that are on the property that are in a state of disrepair. Mr. Roy said he purchased his property in 2001 and at that time the property at 178 Graham Road was clear and kept clean.
Attorney Guliano gave the Board a package for their review.
Attorney Gerlt stated to the Board that Mr. Kupchnos would like his neighbors to know that he asked the Town if he cleaned up the property completely outside, would this matter be dropped. The Town’s position was no because the complaint made was in regards to the use of the property.
The Commission drafted questions/concerns they would like answers to for the next scheduled meeting:
An explanation of the dates found on the Town Assessor field cards.
The date the original field card was produced.
A list of all transactions on the property that have occurred from 1930 to present.
The Board would like to see tax records for the property in question from 1930 to present. This will show the Board how this property has been taxed year after year.
On the assessment for sewers, what year was this assessment from?
The Board would like to know if this property was ever zoned as a commercial use? If it was when did this take place?
When was zoning on this property changed to A-20 zone?
Based on the Assessor card, it says it is A-20 zone and codes 31 & 32, does this equal a nonconforming? If the Town does view this as a nonconformance, are they really looking at a violation of 3.10.5 as being a more objectionable in character to the current use?
The Commission then drafted legal questions that they would like answers to at their next scheduled meeting:
Is the seasonal transition from an agricultural use and then back to a commercial use considered a suspension of the use?
The Commission would like a copy of the ZBA decision from 1971, which approved the addition.
Motion to: table appl. #2636-05 until the March 3, 2005 meeting – Marylou and Susan Kupchunos, c/o Wayne Gerlt, Esquire, P.O. Box 1132, an appeal from the Zoning Enforcement Officer’s decision involving a cease and desist order 10/29/04 alleging change of use without approvals for property located at 178 Graham Road, A-20 zone.
Was made by Commissioner Moriarty
Seconded by Commissioner Dickey-Gaignat
The motion: carried
The vote was as follows: unanimous
ITEM: Other Business
Election of Officers
Motion to: table discussion of Election of Officers until the March 3, 2005 meeting.
Was made by Commissioner Berstene
Seconded by Commissioner Dickey-Gaignat
The motion: carried
The vote was as follows: unanimous
ITEM: Minutes
Motion to: approve the December 2, 2004 minutes as corrected.
Was made by Commissioner Moriarty
Seconded by Commissioner Banks
The motion: carried
The vote was as follows: unanimous
Motion to: approve the January 20, 2005 minutes as corrected.
Was made by Commissioner Banks
Seconded by Commissioner Moriarty
The motion: carried
The vote was as follows: unanimous
ITEM: Adjournment
Motion to: adjourn the meeting at 10:30 p.m.
Was made by Commissioner Banks
Seconded by Commissioner Moriarty
The motion: carried
The vote was as follows: unanimous
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Deborah W. Reid, Recording Secretary
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