TOWN OF SOUTH WINDSOR
ZONING BOARD OF APPEALS
Minutes 1 May 5, 2011
MEMBERS PRESENT: Stephen Wagner, Thomas Berstene, Teri Dickey-Gaignat, Sandy Jeski, James Kupchunos
ALTERNATES PRESENT: Steve Lewis
STAFF PRESENT: Donna Thompson, Recording Secretary
Michele Lipe, Town Planner
Pamela Oliva, Zoning Enforcement Officer
Kari Olson, Town Attorney
The following are motions made during the May 5, 2011 Public Hearing/Regular Meeting.
Public Hearing
Chairperson Wagner called the public hearing to order at 7:30 PM.
The recording secretary read the legal notice into the record as it was published in the Journal Inquirer on Saturday, April 23, 2011 and Saturday, April 30, 2011.
Appl. 2749-11 – Osprey Associates, LLC, appeal of the Zoning Enforcement Officer’s issuance of an enforcement order dated 10/29/2010 alleging: 1. Outdoor commercial and industrial storage of equipment in violation of Section 2.11.A of the zoning regulations; and 2. Changes in the use of the site without approvals in violation of Section 8.5.D.2, on property located at 310 Nutmeg Road, I zone.
Kari Olson, from Murtha Cullina (Town Attorney for South Windsor) explained to the Commission that she had reviewed documentation from the Zoning Enforcement Officer’s file as well as the State Statutes relevant to Zoning Boards of Appeals. Attorney Olson stated that she felt there was reason to be concerned that the ZBA does not have jurisdiction to hear this appeal based on the date that it was filed. Attorney Olson advised the Board that the best way to proceed is to allow the appellant to provide whatever information the appellant may have to establish why they believe the Board does have jurisdiction, because that is a preliminary question that must be answered. Attorney Olson then advised the Board after they have heard the evidence presented on the timeliness of this appeal, they should by motion determine
whether the Board has jurisdiction to proceed with the appeal or whether it has to be summarily dismissed. That decision has to be made before they receive any additional evidence or consider whether the appeal should be granted or denied on factual grounds.
Chairperson Wagner questioned if the decision is made by a regular majority of 4. Attorney Olson stated that yes it would be the same majority. Wagner asked what would happen if the vote was 3 to 2 in either direction and Olson answered that as far as the jurisdictional issue is concerned it is her understanding that majority vote is required so that the Board would have to allow the appeal to proceed. Commissioner Kupchunos had Attorney Olson clarify that just a majority is needed to determine if the Board has jurisdiction, but that a super majority is needed to overturn the decision of the Zoning Enforcement Officer.
Chairperson Wagner then requested that Attorney Olson present the evidence she has to show that the Board does not have jurisdiction. Olson referred to the letter she provided to the Town Planner, Michele Lipe, a copy of which had been sent to the Commissioners, where she explained the basis for her decision that was based upon correspondence from Attorney Lobo to the ZEO establishing the knowledge of the cease and desist order which Olson stated in her letter pursuant to CT General Statute 8.7 starts the clock running for an appeal for the ZBA’s decision. She referred to the second page of her letter, where she indicated that the first indicator that Osprey Associates had notice of the order could be determined to be as early as October 29, 2010 based upon the file log in the ZEO’s file, where it is indicated that
Attorney Lobo came to the office of the ZEO and received a complete copy of the file, including the cease and desist order. Olson said that even if the ZBA disregarded that file log, there is a letter from Attorney Lobo to the ZEO establishing that she represents Osprey Associates, LLC and that she is aware of the cease and desist order. Olson stated that given the benefit of the doubt, the latest date that she believes the 30 day clock could start running is the November 18, 2010 letter from Attorney Lobo, but Olson understands the appeal was never filed until March 16, 2011. Olson pointed out that it was her understanding there was some claim about whether they received “the actual notice” because it went to one member of the LLC instead of another or someone else – this was not clear. Olson stated in her letter to the Town that an actual written notice is not generally required – constructive notice is appropriate to start
the clock. Olson reiterated that Attorney Lobo’s letter dated November 18, 2010 establishes that Osprey Associates did in fact have notice of the cease and desist order, which is basically an admission on the part of an agent of Osprey Associates that they had the cease and desist order. Olson said that giving them the benefit of the doubt by using the November 18th date, the latest date that Osprey could have appealed the decision of the ZEO would have been December 18th, yet the appeal was not filed until March. Olson stated that it is her understanding that this is a jurisdictional question, that the ZBA does not have jurisdiction and that it’s clear to entertain an appeal that is not timely filed within the statutory timeframe. Olson then said that this was based on information provided to her and she feels that Osprey Associates has the right to have the opportunity to be heard on this particular jurisdictional
issue. There may be additional information she is not aware of or another basis for them to believe the appeal should go forward. Olson did advise the Board that they do need to render a decision on the jurisdictional question before moving forward with the appeal.
Chairperson Wagner questioned whether the ZEO should review any additional information at this point, but Attorney Olson suggested that Osprey Associates representative be allowed to present what they have, then allow the ZEO to present for the record the 2 documents Olson referred to in her memorandum to the Board.
Commissioner Kupchunos asked if the cease and desist order had to be served by a marshal for proper service? Olson responded that it is not required; in fact the statute does not even require that the order be in writing. Verbal is sufficient. Olson confirmed that it was sent certified mail, return receipt requested. Olson then stated that based upon the law the clock clearly started running at the latest point in time upon the admission of Osprey Associates that they had in fact received it. Though she believes they actually had notice well before that based on the file log.
Attorney Derek Oatis from Lobo and Novak represented the applicant. In regard to the issue of timing, Oatis stated that there is a letter in the file dated February 16, 2011 from the ZEO granting a continuance to February 22, 2011. Oatis felt that the extension would allow 30 days from February 22, 2011 to file the appeal; in that case the appeal was timely. Oatis stated that Osprey Associates, LLC does not exist; it is not registered with the Secretary of State. He believes it is a dba with the intention of forming an llc. The original cease and desist order was sent by mail. It is his understanding it was sent to a non-owner of the property. There are 2 owners of the property, the recipient of the cease and desist order was not one of the owners of the property. He believes that, besides the
jurisdictional issue, creates a due process question. This is the basis of Oatis’ concern. His client is not the owner of the property and the notice was not sent to the owner of the property, therefore he does not believe the Town can take any action against the owner of the property when they were not only not notified but the cease and desist order named the wrong owner of the property.
Wagner asked about the letter date February 16, 2011 that Attorney Oatis referenced regarding the granting of a continuance by the ZEO. Attorney Olson addressed the issue from a legal standpoint – whether the ZEO granted an extension to come into compliance really doesn’t implicate the appeal period. The appeal period is from the issuance of the order. There was significant correspondence afterwards asking for extension after extension to rectify the situation. There was never any tolling of the appeal period or agreement to toll the appeal period, and the statute is clear – it is from the order. In fact, she believes there is an argument that by sending the correspondence and asking for an extension to rectify the situation there’s again a suggestion of an admission that there was a
violation, not that there was ever any intent to appeal based on grounds that the initial order was invalid. As a matter of law that does not extend the date. Olson stated that in a footnote to the memo she provided, she also noted that Osprey Associates did not exist as of the Secretary of State. However, she was provided a deed that indicates that in fact Osprey Associates is the named owner of the condominium that’s at issue, and again, that Attorney Lobo, reporting to represent them, admitted that they had received a copy of the cease and desist. So, again, Olson does not feel that’s a valid way to get around the jurisdictional question.
Wagner: The letter from Lobo and Novak dated November 18, 2010, says please advise that this office represents Osprey Associates LLC, the owner of all but one of the office condominiums – so they existed in November, but they don’t exist now, is that what we’re saying? Attorney Oatis’s understanding is that they didn’t exist as an LLC either in November or now. There were representations made that perhaps they did exist but that is incorrect. Who did Lobo and Novak represent at that time? Oatis: We represent the recipient of the cease and desist order, Roger Talbot, Sr. who is not an owner of the property. Oatis’s understanding is that Roger Talbot, Jr. and John Fillaramo are the actual owners of the property. Commissioner Berstene asked if Mr. Talbot
has a lease on the property. Oatis responded that he does not know what the legal arrangements are for the use of the property. Berstene then commented that we have a company that does not exist, with a person who may or may not even have a lease to be on the property and is creating a situation that is getting more confusing by the day as to who actually has jurisdiction. Olson: Again, my argument here is that Osprey Associates is the name on the deed, Osprey Associates is the name reportedly provided to the Assessor for all tax bills. If they have failed to properly file with the Secretary of State that does not implicate the notice issue here. We have a clear statement on behalf of Attorney Lobo indicating she represents Osprey Associates, that they received the cease and desist order and requesting an extension of time to rectify the situation. So, again, Olson does not know what the issue is here but they are holding themselves out as
Osprey Associates, their name is on the deed to the condominium and if they have failed to properly incorporate or establish the LLC, that’s their problem, it does not implicate the ZEO’s order to the owner of record. Attorney Oatis stated that the ZEO’s order was not to the owner of record, that is sort of the issue here. Roger Talbot, Sr. was in the hospital for approximately a month when this order was sent and received by someone else picking up his mail. As a matter of due process, no matter what representations are made to someone who wasn’t provided notice, the Town cannot take action against an individual who was never provided notice, and in fact when the cease and desist order was sent to the wrong individual who was not an owner of the property. Wagner: Do you have documented evidence that the order was sent to the wrong person? Oatis: I have the cease and desist order to Roger Talbot, Sr. Olson: There was a cease and desist that went to a Roger Talbot, Sr. on
behalf of Osprey Associates. We received the letter dated November 18th from Attorney Lobo stating that: “Please be advised this office represents Osprey Associates LLC. The owner of all but one of the office condominiums located at 310 Nutmeg Road. The owner of Unit C10 is Timothy Fogarty. Mr. Roger Talbot, Jr. is a member of Osprey Associates LLC and his father, Roger Talbot, Sr. has been in the hospital for an extended time recovering from complications related to recent surgery. Therefore, we would request an extension of 90 days in which to respond to the enforcement order”. Olson: Again, she indicates at this juncture she is representing the record owner of the property, she refers to both Roger Talbot, Jr. and Roger Talbot, Sr. What it comes down to is does the law require that the notice even be in writing? I pointed out to you that it doesn’t even have to be in writing, and constructive
notice also starts the clock running. So, anyway you slice it, I don’t see how you get past the November 18,, 2010 deadline. I would go back as far as the October date when Attorney Lobo came and received a copy of the enforcement file on behalf of the purported owner of the property. The ZEO, just like the Assessor, is not going to be liable for failing to give notice when the record owner of the property as been noticed. If they failed to put the proper name on the property, that’s not the fault of the ZEO, that’s their error and it doesn’t implicate the jurisdictional question in this case.
Wagner: So, we are really dealing with a corporation, an LLC. Olson: An LLC that has never been properly registered or established with the Secretary of State. Oatis: I don’t disagree. I think counsel is correct, without waiving my ability to maybe appeal the decision if I learn she is incorrect, but that it doesn’t have to be actual notice, it has to be constructive notice of some sort. It could be by carrier pigeon sent to Osprey Associates, however, in this case the carrier pigeon went to the wrong individual, saying you are the owner of the property, the Town begins its ability to take action against you. In this case, Attorney Lobo sent the letter describing that Roger Talbot, Sr., the recipient of the cease and desist order was in the hospital, requested 90 days in which to
respond to the enforcement order, at the same time I am here making this rather technical argument about notice, I don’t believe that this issue’s going away if the Town finds there wasn’t proper notice and we have to revisit this issue. My understanding is that we don’t have complete control over everybody involved here, but that there is an intention to deal with this issue. But, at the same time, obviously a finding here that there’s non-compliance creates more difficulty in doing that in a practical way. I think in this case it’s not that the notice was sent to the proper individual or the notice was made to the proper individual, but that notice was made not to the proper individual, whether Osprey was registered as an LLC at the time is irrelevant; the notice was sent to Roger Talbot, Sr. who is not the record owner of the property. Olson: You are talking about the written notice, how do you explain the
Lobo letter indicating that she represents the company who’s the record owner of the property in November. Oatis: There’s nothing in the record indicating that verbal notice was ever made to the proper owner of the company. The Town at least has to take the step to identify the individual which it seeks later to take some action against, a monetary damage action against in the future and in this case the Town never did that. I don’t think Attorney Lobo by stepping up and saying I represent the individual you may want to deal with and I request 90 days to respond to the enforcement order, I could argue that indicates the order is no good, it was sent to the wrong person, but give me 90 days and I’ll try to respond to that order. I think given that 90 days she did indeed meet the timeframe within that.
Wagner: The request for extension is just for an extension of 90 days; it doesn’t say in order to remediate the problem or to appeal.
Berstene: Section 8.7 of the State Statutes says an appeal may be made to the Zoning Board of Appeals by any person aggrieved or by any officer, department, board or bureau associated with the aggrieved and shall be taken within such time as prescribed by a rule adopted by said Board or if no such rule is adopted by the Board within 30 days by filing with the Zoning Commission or the officer from whom you feel… It seems that it never came to ZBA to say they were going to file. Olson: There is no authority to grant an extension to the appeal period – the ZBA doesn’t have the authority to do that, the ZEO doesn’t have the authority to do that. The appeal period is the period that runs from the date on which the order is issued. Oatis: Counsel is correct on that, this Board
has no power to extend the appeal – no matter what. But out of fairness, if Attorney Lobo had not acknowledged receipt of notification to the incorrect name on the original enforcement order, this Board could have never taken any action because there would have been no notice or no proof of notice to the proper person. But Attorney Lobo did step up and said even though she doesn’t have control over all individuals involved but let’s try to work something out.
Jeski: You’re saying they were never notified – on 9/17 the property was inspected and the ZEO talked to Tim Fogarty, who owns part of the property. A letter was sent to Roger Talbot, Sr. on 9/27. On 10/1 he called the office saying he was going to stop in for a copy of the letter. Wagner: the log says the enforcement order was sent on 10/15/10. Oatis: Roger Talbot, Sr. is not an owner here, if the Board wishes to take action against Mr. Fogarty, who had some verbal communication, he has no problem with that as they don’t represent him. Olson: he’s the complainant. Oatis: But he’s apparently the only one that is actually an owner and talked to the ZEO. Olson: You’re the record owner by deed. In fact, Roger Talbot,
Sr. is named in the deed as well.
Olson: Appeal must be filed in accordance with law, consistence with the Town. ZBA is not convened just to accept an appeal.
Wagner: What evidence is there that this letter went to someone totally not associated with this business that contradicts the letter of November 18th? Oatis: The letter from the ZEO on its face is addressed to Roger Talbot, Sr. Olson: (Reading from the November 18th letter) The deeds we have and 3rd amendment and declaration indicates that Osprey Associates is the owner of the various units that we have been discussing here tonight. Timothy Fogarty is the owner of 310 C-10. Roger Talbot, Sr., Irene Talbot and Osprey Associates, Timothy Fogarty and Hale Realty as successor declarents are amending the declaration and they renamed the units. Again, that’s the record owner of the property and that’s who Attorney Lobo indicated received the enforcement order. What it really boils down to is it is a distinction without any kind of meaning in this situation, for a number of reasons: there is no written notice even required that we have Attorney Lobo purporting to act on behalf of
these individuals and acknowledging receipt of the enforcement order. We have other sufficient information in the record indicating that they actually really knew about this issue well before the November 18th date and the fact that you don’t have statutory authority to extend the appeal period. You will also notice that in the response to Attorney Lobo’s request for an extension she was advised that they would not take any further action on the cease and desist provided they came in with a plan to remediate the situation. The extension was qualified by saying – we’re not going to come after you, as long as you come in within those 90 days with a plan to remediate (there is no agreement to extend the appeal period).
Wagner requested copies of all correspondence related to this issue. Michele Lipe, Town Planner, stated that there were 2 enforcement orders sent out – the first (dated 10/15/2010) went to an incorrect post office box, which Attorney Lobo corrected by coming into the Planning Department. The second notice (dated 10/29/2010) was then sent out to the corrected post office box. The later notice is the one we are working with. The Commissioners then reviewed the additional documentation.
Wagner used a hypothetical situation to clarify that it is possible to request/receive an extension to remediate a problem, which would not stop the appeal period from expiring. Olson stated there is a distinction between agreeing to remediate and asking for additional time from the ZEO to accomplish that remediation, and a challenge to the ZEO. Using Wagner’s hypothetical example, Olson said that if he didn’t agree with the ZEO that it was a violation or that the cease and desist was appropriate, he would have to appeal within 30 days. Wagner stated that the letter from Attorney Lobo just uses the word “extension”; it doesn’t say “an extension in order to remediate the problem or an extension to appeal”. If it was the latter, we don’t have jurisdiction to grant
that. Olson: You don’t have jurisdiction to grant an extension to the 30 day appeal period. The ZEO does have the ability to say “I’m not going to come after you or file a lawsuit as long as we’re working towards a goal”. You’ll see in the letter from the ZEO in response to the request for extension just that. – saying I will grant you’re extension because the cease and desist says you have to fix this within 10 days. So, when Lobo requests an extension to respond, the ZEO can only promise that she won’t come after them for 90 days. There is no authority for the ZEO to say they don’t have to appeal for 90 days – that’s statutory. As there is no authority for ZBA to say that the appeal period will be tolled.
Olson stated that based on the law and the information provided to her, she advised the Board that there is significant basis to determine the Board does not have jurisdiction over this appeal. Though it is the Board’s decision to render, she did advise that they keep in mind that their decision to go forward on the jurisdictional issue is also appealable. The complainant also has a basis for challenging that decision.
Wagner: Two issues here – 1) Did the proper people receive the notice? Namely, representatives of this corporation. 2) When did the appeal period start and do we have the authority to extend it? Olson: Absolutely no question regarding the jurisdictional question - beyond the 30 days you lose jurisdiction to hear the appeal. The question regarding when did the 30 day clock start running – the information provided indicates that at the latest it started running on November 18th. Wagner: The other fact we have to consider is when the appeal was actually filed. Olson/Oatis: March 16, 2011. Oatis: The enforcement letter went out October 15th; there is some question as to whether the P.O. Box was corrected. Lipe: There was a second letter that
went out October 29th. Oatis: Going by the ZEO’s notice the violation was in effect in early November, 10 days from the sending of the notice. The appeal period would have run as to this letter prior to Attorney Lobo’s letter to the Town, saying wait a second, even though the violation has already occurred, even though the appeal period has already run, I still want to work with the Town. That doesn’t start a new appeal period; the appeal period has already run, as to the recipient of the notice. Olson: When the order is issued the 30 day clock starts running. If you are going to challenge the decision on grounds that it was invalid, that you really weren’t violating the regulations, you’ve got 30 days from the notice of that order, and notice can be actual or it can be constructive – the law is very clear on that. The reason they permit constructive notice is they don’t want someone
hiding behind some technicality and suggest they never got proper notice when they had notice all along. Oatis: If Attorney Lobo meant to be that sneaky, she would have never sent the letter to the Town. Had they remained silent then there wouldn’t have been proper notice. Olson: Stated that she did not agree with Oatis on this point.
Wagner returned the discussion to Commissioner Berstene who requested Attorney Olson review Section 8.12 Procedures When Regulation Is Violated for clarification on who is the proper noticee. Wagner requested Olson read the statute aloud – basically anyone associated with the property could be considered a “noticee” and it also gives the ZEO other means of enforcing the regulations, the cease and desist is not the only opportunity. You could have commenced an injunction action right from the outset. The reason it is implicated here, for purposes of appealing to the ZBA you have to be able to determine when that appeals clock begins to run. In this case it is important because there is an argument here that with constructive notice the appeal period has run out.
Wagner asked if all information has been presented that will allow the Board to make its decision. Lipe stated that in addition to the documentation the Commissioners had received prior to the meeting and reviewed during the meeting (the 90 day extension request, another month extension request, the ZEO’s letter in response to that request stating to come in within 2 weeks with a plan to rectify the situation). Per Pam Oliva, the Zoning Enforcement Officer, it was after the her letter dated February 28, 2011 denying an additional 30 days and requesting a plan that the appeal was filed.
Motion: moved that based on State Statute Section 8.7, this Board does not have jurisdiction to hear the appeal due to the Notice to Appeal not being filed with the Zoning Board of Appeals within the 30 day appeal period from date of issuance of Enforcement Order dated 10/29/2010.
Was made by: Commissioner Berstene
Seconded by: Commissioner Jeski
The motion: carried
The vote was as follows: unanimous.
Chairperson Wagner opened the public hearing at 8:35 pm for:
Appl. 2750-11 – John & Sheryl O’Connor – request for a 1 foot variance to section 3.1.2 to allow an addition 19 feet from the side property line (20’ required) on property located at 3 Oakwood Drive, AA-30 zone.
Mr. and Mrs. O’Connor presented the variance application - requesting to build one foot into the buffer zone in order to have an addition put on the house. John O’Connor stated that both their neighbors have no problem with what they want to do. The contractor told them that in doing a full foundation along the long side of the house, an angle will make it stronger and would match the rest of the neighborhood better. The septic system is in the way on the back side of the house. Sheryl O’Connor stated that the variance would not be for the full length of the addition because of the property line. The addition will encroach slightly in one area and the rest move into the legal area. Mr. O’Connor stated that the house is slightly crooked on the property.
Berstene: Asked where the septic system is located. Mr. O’Connor stated that the septic tank is centered just behind the deck and the leach field is in the back of the property.
Wagner: Asked why the addition could not be put in the area where the deck is now situated. Mr. O’Connor explained that the foundation for the addition would be a problem and that the deck was set on pilings which allowed them to avoid the septic tank.
Lewis: Asked for the reasoning for the jog versus a straight line. Mr. O’Connor stated that the contractor felt that because it is a new foundation connecting to an old foundation, a footing below and a real corner rather than just a straight wall ending at the new foundation would be preferable for support. Mrs. O’Connor said it also has to do with the way the roof would be coming out from the house. There is a second floor bedroom right above where the addition would fit and apparently there are regulations about how far the roof needs to be from that upper floor window for safety purposes.
Dickey-Gaignat: Asked in what direction the steps from the deck will be headed. Mrs. O’Connor stated that the steps will be going off the back of the deck due to the topography of the property.
Chairperson Wagner closed the public hearing at 8:43 pm.
ITEM: Deliberative Session
Appl. 2750-11 – John & Sheryl O’Connor – request for a 1 foot variance to section 3.1.2 to allow an addition 19 feet from the side property line (20’ required) on property located at 3 Oakwood Drive, AA-30 zone.
Motion to: approve Appl. 2750-11 – John & Sheryl O’Connor – request for a 1 foot variance to section 3.1.2 to allow an addition 19 feet from the side property line (20’ required) on property located at 3 Oakwood Drive, AA-30 zone, as shown on the plans submitted.
Hardship: Placement of house on property, placement of septic system on property with no town sewers available, corner lot.
Was made by: Commissioner Jeski
Seconded by: Commissioner Dickey-Gaignat
The motion: carried
The vote was as follows: unanimous.
Regular Meeting
ITEM: Minutes
Motion to: approve the minutes of April 7, 2011.
Was made by: Commissioner Berstene
Was seconded by: Commissioner Jeski
The motion: carried
The vote was as follows: unanimous
ITEM: Old Business
Proposed by-laws revision: Add section c. to IV. Applications: Applications shall be officially received by the Board on the day of the next regularly scheduled meeting immediately following the day of submission or thirty-five days after such submission, whichever is sooner.
Motion to: approve amendment to bylaws as stated:
Was made by Commissioner Jeski
Seconded by Commissioner Dickey-Gaignat
The motion: carried
The vote was as follows: unanimous
ITEM: Adjournment
Motion to: adjourn the meeting at 9:00 p.m.
Was made by Commissioner Jeski
Seconded by Commissioner Dickey-Gaignat
The motion: carried
The vote was as follows: unanimous
Respectfully submitted:
Donna Thompson
Recording Secretary
Approved: July 7, 2011
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