MEMBERS PRESENT: Chairperson Stephen Wagner, Thomas Berstene and Teri Dickey-Gaignat
ALTERNATES PRESENT: Ronald Banks sitting for vacant seat
Tim Moriarty
Chairperson Wagner called the meeting to order at 7:00 p.m.
Appl. #2636-05 – Marylou and Susan Kupchunos, c/o Wayne Gerlt, Esquire, 178 Graham Road, A-20 zone
Commission members discussed and agreed upon not having an Executive Session.
The meeting began with Attorney Fahey reviewing burden of proof with the Board. Attorney Fahey stated that it is the Boards responsibility pursuant to the required hearing to find the facts and apply the pertinent zoning regulation. The Board is endowed with liberal discretion.
Attorney Fahey next discussed nonconforming uses. The Board must determine the use that was in place in March of 1938 when the zoning regulations were established. For a use to be considered nonconforming it must possess two characteristics:
The use must be lawful; and
The use must be in existence at the time of the relevant zone change.
Attorney Fahey explained that this Board would have to determine whether or not the commercial activities were more than agricultural storage or a potato warehouse in March of 1938 or was it known as something broader than that.
Answering questions from the Board, Attorney Fahey explained that the Assessor has stated that the land was taxed as agricultural, but there are affidavits that commercial activities were ongoing. The Board must make a determination by weighing the two statements in order to decide whether there was intent to abandon.
Michele Lipe, Assistant Director of Planning answered Attorney Fahey’s question by stating in 1938 when the regulations went into effect, an agricultural warehouse was a permitted use in the zone, as well as it is presently. Anything beyond agricultural use of the warehouse is not permitted in this zone.
Commissioner Moriarty discussed the Zach factor, which is used to determine unlawful expansions or permissible intensification of a use. Consideration should be given to the following three factors:
The extent to which the current use reflects the nature and purpose of the original use.
Any difference in the character, nature and kind of use involved.
Any substantial differences in effect upon a neighborhood resulting in differences in activities conducted on the property.
Attorney Fahey added that the Board would need to determine if the current use is substantially different then the original use. The Board will also need to determine if this property was used for a commercial warehouse or agricultural warehouse.
The Commission reviewed the following items:
Francis Reichle affidavit
Helen Kupchunos affidavit
Weller affidavit
Newspaper article of Mr. Stein’s obituary
During this lengthy discussion, Attorney Fahey discussed further with the Board abandonment and burden of proof. Commissioner Berstene added to the discussion that the appellant was being taxed as an agricultural use. Commission members also discussed what they felt was being done at this site over the years.
Motion that: agricultural and commercial use existed in March of 1938.
Was made by Commissioner Moriarty
Seconded by Commissioner Dickey-Gaignat
Motion to: amend the motion to read agricultural and commercial use existed in March of 1938, but not public storage.
Was made by Commissioner Wagner
After a short discussion it was felt the amendment was not necessary.
The motion: failed (no second)
The original motion was called.
The motion: failed because it did not receive the required four votes
The vote was as follows: 3 to 2 with Commissioners Wagner, Moriarty and Dickey-Gaignat voting in favor of the motion and Commissioners Berstene and Banks voting in opposition to the motion.
Commissioner Banks explained that he did not feel there was enough documentation to support that there was commercial activity happening.
Motion to: continue discussions by following the handout provided.
Was made by Commissioner Moriarty
Commissioner Berstene stated that he felt the Commission should use the handout as backup and not use it to direct the Commission.
The motion: failed (no second)
Motion to: even if the nonconforming use was in effect at the time of zoning, that based on the evidence the use was abandoned.
Was made by Commissioner Banks
Attorney Fahey suggested that the Board make a motion to uphold or overturn the Zoning Enforcement Officer’s decision.
Commissioner Banks withdrew his motion.
Motion to: given that the required number of the Board doesn’t believe that there was a commercial activity in March of 1938, had there been a commercial activity in March of 1938 at the time of the zoning regulations, was that activity abandoned as indicated by the affidavit which means the late 1930’s and end of World War II due to need for production of potatoes.
Was made by Commissioner Berstene
Chairperson Wagner moved the motion out of order because it was stated as a question.
Motion that: if there was commercial activity at the time of the zoning regulations in March of 1938, it was abandoned between 1938 and 1945 based on the evidence presented in the affidavit.
Was made by Commissioner Berstene
Seconded by Commissioner Moriarty
Attorney Fahey stated that he feels the Board is imposing a hypothetical situation and should form a resolution that will cover the points the Commission is trying to make.
Commissioner Berstene withdrew his motion. Commissioner Moriarty withdrew his second.
Motion to: uphold the Zoning Enforcement Officer’s enforcement order based on the following findings:
The building on the premises of 178 Graham Road was constructed prior to the adoption of zoning by the Town of South Windsor as a warehouse.
At the time of adoption of zoning in 1938 the warehouse was not being used for commercial purposes.
The warehouse has not been continuous use for commercial non-agricultural purposes.
Commercial non-agricultural uses of the warehouse did not continue from prior to zoning coming in March 1938 nor did it continue to present day.
Nonconforming use of the property has not been sufficiently demonstrated and we find that the property has not been continually used as a commercial non-agricultural warehouse.
This Board upholds that the nonconforming use of the property was not sufficiently demonstrated to be taking place prior to March of 1938. Therefore, the cease and desist order issued by the Zoning Enforcement Officer dated October 29, 2004 is not reversed.
Was made by Commissioner Moriarty
Seconded by Commissioner Dickey-Gaignat
Commission members discussed in length the motion on the table and made suggestions and comments to the resolution (Attachment A and B).
Commissioner’s Moriarty and Dickey-Gaignat accepted the amendments.
The original motion as followed was called.
Motion to: move the following resolution:
On May 4, 2005, the Zoning Board of Appeals having heard the appeal of Susan Kupchunos and Marylou Kupchunos, Application 2636-05 regarding 178 Graham Road, received on or about November 24, 2004 and heard at a public hearing beginning February 3, 2005 and continuing on March 3, 2005, affirms the Zoning Enforcement Officer’s Cease and Desist Order dated October 29, 2004 based on the following findings:
The building upon the premises of 178 Graham Road was constructed prior to
the adoption of zoning by the Town of South Windsor in March of 1938.
At the time of adoption of zoning on March 7, 1938, the warehouse was being
used for permitted agricultural uses and was not being used for commercial
purposes.
The current commercial use does not reflect the nature and purpose of the
original use. It is substantially different in character and much more expansive
than the use existing as of march 7, 1938.
The existing commercial use of the property is an illegal expansion of the
permitted agricultural use.
Therefore, the Cease and Desist Order dated October 29, 2004 remains in full force and effect.
The motion: carried
The vote was as follows: 4 to 1 with Commissioners Banks, Dickey-Gaignat, Berstene and Moriarty voting in favor of denial and Commissioner Wagner voting in opposition of denial.
Chairperson Wagner stated his reason for not voting in favor of the motion was because he believes there was commercial activity on March 7, 1938.
Motion to: accept amendments as stated above.
Was made by Commissioner Moriarty
Seconded by Commissioner Dickey-Gaignat
The motion: carried
The vote was as follows: unanimous
ITEM: Adjournment
Motion to: adjourn the meeting at 10:55 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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