TOWN OF SOUTH WINDSOR
ZONING BOARD OF APPEALS
Minutes 1 May 2, 2013
MEMBERS PRESENT: James Kupchunos, Teri Dickey-Gaignat, Joseph Etter, Joseph Kennedy
ALTERNATES PRESENT: Edwina Futtner sitting for Thomas Berstene
Wayne Kilburn
STAFF PRESENT: Michele Lipe, Town Planner
Donna Thompson, Recording Secretary
The following are motions made during the May 2, 2013 Public Hearing/Regular Meeting.
Vice Chairperson Kupchunos called the public hearing to order at 8:00 pm in the Madden Room.
The Recording Secretary read the legal notice as published in the Journal Inquirer.
Public Hearing
Appl. 2769-13 – Anthony Barbagallo - request for a 33 foot variance to Table 3.1.2A to allow the existing building lot with 142 feet of frontage (175 feet required), on property located at 499 King Street, RR zone.
Mr. Barbagallo, a co-owner of the property, presented information regarding the application and some history of the property. He stated that 499 King Street was sold in 2003 after his grandmother passed away, but the remainder of the property was retained by the Russak family. The heirs, Mr. Barbagallo and Barbara Duffy, would like to sell the property to the Town for open space because they do not want the land and the pond changed or destroyed by development if someone else should purchase the property. It was determined that previous Planning and Zoning requirements had not been met and Mr. Barbagallo is seeking a variance to help mitigate this issue and allow the sale of the open space property to the Town of South Windsor.
Commissioner Etter stated that the use of the back parcel or the sale of it is not a concern of this Commission, but that the narrative of how the situation was created is relevant to the Commission’s discussion.
Michele Lipe, Town Planner, reviewed background information regarding the property, the previous Planning and Zoning Commission application and approval, and the subsequent change of ownership of part of the property (see attached memo). The property at 499 King Street is not a conforming building lot. The variance for the frontage as well as additional square footage added to the rear of the property will bring it more into conformance. In 1990, the Planning and Zoning Commission (PZC) had stipulated the reconfiguration of this property as a condition of approval for a subdivision application before them at that time. The reconfiguration had not been done and the owners are attempting to rectify the situation in order to sell the property on the adjacent frontage to, and rear of, 499 King Street to the Town of South
Windsor as open space. If a title search for the sale of 499 King Street in 2003 was done, it should have revealed that the reconfiguration of the land had not been done. Ms. Lipe stated that the additional frontage for 499 King Street is necessary for the sale of the property to the Town as the Town is requiring that they own in fee the right of way into the property. They do not want an easement for access into the rear. The plan is for the owner to give an easement to 499 King Street for continued access onto 499 King Street. The additional land that is proposed to go to 499 King Street will include buildings that currently straddle the building line.
Commissioner Etter stated that one of the conditions of the subdivision being approved by the PZC was that 499 King Street be brought into compliance and this was not done.
The Commissioners had no more questions for the applicant.
Motion to: close public hearing at 8:22 pm
Was made by Commissioner Etter
Seconded by Commissioner Kennedy
The motion: carried
Vote: unanimous
Vice Chair Kupchunos stated that a letter had been received from Matthew Galligan, Town Manager, stating the Town’s interest in the property behind 499 King Street and support for the variance application.
Deliberative Session
Appl. 2769-13 – Anthony Barbagallo - request for a 33 foot variance to Table 3.1.2A to allow the existing building lot with 142 feet of frontage (175 feet required), on property located at 499 King Street, RR zone.
Commissioner Etter stated that Mr. Galligan’s letter has everything to do with the Town’s interest in the property but has nothing to do with the configuration of the land and how it got to be the way it is and what the proper remedy is. Commissioner Etter stated that since the owners had previously been instructed to reconfigure this lot and failed to do so; and have since benefited materially both from the original PZC decision which enabled them to create the building lots as well as the subsequent sale of 499 King Street, he felt this was not something we should do to reward the family by making this a conforming lot after the fact. However, since the Town has an interest in the 50 foot right of way, Commissioner Etter recommended that the 8.5 feet of frontage be conveyed to the current owner of 499 King Street
but not incorporated in the building lot and that the application should be denied.
Vice Chairperson Kupchunos read into the record the letter from Matthew Galligan, Town Manager of South Windsor, in support of the application.
Commissioner Futtner questioned how the owners will benefit if the variance is granted. Ms. Lipe responded that the property at 491 will be sold to the Town and the owners of 499 King Street will gain an additional 20,000 square feet to make it a conforming lot in area and will gain additional frontage. Commissioner Futtner also questioned since the reconfiguration was not done in the past why is it necessary now. Ms. Lipe explained that it is basically a preventive measure against any future claim of ownership on the property in back of 499 King Street. The zoning issue was discovered and needed to be addressed.
Commissioner Etter asked Ms. Lipe to explain what the hardship is unique to this parcel. Commissioner Etter stated that whatever hardship there is was created by the owners in ignoring PZC requirements in 1990.
Commissioner Kennedy and Commissioner Futtner felt that PZC was remiss in their oversight by not following up on whether their approval conditions are complied with. Commissioner Kennedy stated that granting the variance would be righting a wrong, plain and simple, and the Town would gain open space out of it. Commissioner Etter stated that PZC sets policy does not enforce it. Commissioner Kennedy questioned why be punitive against the current owners by not granting the variance. Commissioner Etter stated because they did not comply with a condition set by PZC originally. Commissioner Dickey-Gaignat reviewed the variance request and stated that she is in agreement that the applicant is just trying to comply with the PZC in bringing the lot up to conformance, which was apparently overlooked in 2003 when 499 King
Street was sold. Commissioner Etter stated that it was not overlooked, it was ignored and the applicant should not be rewarded for not complying with PZC 20 years ago. Commissioner Etter stated that all applicants are expected to comply with all PZC conditions of approval and if this exception is made, what about next time.
Commissioner Etter again asked Ms. Lipe what the unique hardship is on 499 King Street. Commissioner Etter was not satisfied with Ms. Lipe’s response regarding access to the back lot, stating that it was irrelevant to 499 King Street, other than they want to sell it and can’t if we don’t do something. Commissioner Etter stated that the fact that the variance would bring 499 King Street more into compliance was also irrelevant and why can’t it stay the way it is. Ms. Lipe responded that it can continue as is. Commissioner Etter then stated that the fact that it could prevent the sale of the back lot is not ZBA’s concern. Ms. Lipe responded that he does not have to support it, but that there are a number of variables associated with this application and the decision should be based on
all aspects.
Commissioner Kupchunos stated that the hardship with 491 King Street (the back lot) is access to a landlocked lot and the applicant is trying to do what they can to have access to that back lot. Commissioner Etter continued to insist that 491 King is not our concern, that 499 King is. Commissioner Kupchunos stated that by making 499 King a more conforming lot helps 491 King. Commissioner Etter stated that we could just as easily approve it as a non-conforming lot as it is currently configured, without any additional property added to it. Commissioner Etter stated that rules are in place for a reason and developers cannot be allowed to ignore conditions of approval from PZC and that ZBA should not set aside orders of PZC that were ignored. What do you say to the next developer that comes in and
doesn’t like what PZC asked them to do, that they agreed to do and then says we don’t want to do that so help us out? Commissioner Kupchunos sited an example where flexibility in consideration of circumstances could be taken into account.
Commissioner Etter once again stated that he doesn’t see that we have to approve this application for the reasons stated, that in no way does it meet the definition of hardship which would allow approval of the variance. A majority of the Commissioners expressed support of the application and a motion was requested.
Motion to: approve Appl. 2769-13 – Anthony Barbagallo - request for a 33 foot variance to Table 3.1.2A to allow the existing building lot with 142 feet of frontage (175 feet required), on property located at 499 King Street, RR zone
Hardship: variance is needed to increase lot frontage to bring more into conformance, while leaving access to the back property.
Was made by Commissioner Kennedy
Seconded by Commissioner Futtner
The motion: carried 4 - 1
Vote: 4 yea – Kupchunos, Dickey-Gaignat, Futtner, Kennedy; 1 nay - Etter
Approval of Minutes:
Motion to: approve minutes of 4/4/2013
Was made by Commissioner Etter
Seconded by Commissioner Dickey-Gaignat
The motion: carried
Vote: unanimous
Old Business: Added to Agenda and tabled to next meeting: review of by-laws and proposed fees.
Adjournment:
Motion to: adjourn the meeting at 8:55 pm
Was made by Commissioner Dickey-Gaignat
Seconded by Commissioner Futtner
The motion: carried
Vote: unanimous
Respectfully submitted:
Donna Thompson
Recording Secretary Approved: September 5, 2013
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