Simsbury, CT - Planning Commission Minutes

Chairman John Loomis called the regular meeting of the Planning Commission to order at 7:10 p.m. in the Main Meeting Room of the PlaceNameplaceSimsbury PlaceTypeTown Hall.. The following members were present: Secretary Ernest Gardow, Susan Bednarcyk, Ferguson Jansen, Carol Cole, Gregory Piecuch, Mark Drake, Charles Houlihan and Brad Mead. Also in attendance was Howard Beach, Conservation/Inland Wetlands and Zoning Compliance Officer, as well as other interested parties. Hiram Peck, Director of Community Planning & Development, arrived at the meeting at approximately 10:00 p.m.

Chairman Loomis commented that the Commission will be looking at this project as a 6-lot subdivision in terms of most of their considerations and would have to understand if they should look at it as anything different. Commissioner Piecuch noted for the record that he had listened to the tapes from the 1/23/07 meeting, reviewed the minutes as well as the record within the Planning Department in order to bring himself up to date. There were no objections from either the applicant or the intervenor with regards to him sitting in on the application.

Attorney William Case reintroduced the members of the team with regard to this application and reviewed the details of the parcel. On 2/6/07, the Wetlands Commission voted unanimously to approve the companion application and approved all the permits associated with it. The proposed plan meets all of the Wetlands’ stringent requirements and proposes no adverse impact to the wetlands, including the Nod Brook. In the course of the presentations to the Wetlands Commission, the applicant has made some improvements to the plan. Those changes include: 1) a Best Practices plan for the use of fertilizers and other chemicals on the property (which will be used by the Town for any future developments as well); 2) a change in the length of the retaining walls along with engineering details, including benching information; 3) a revised detailed plan provided by the landscape architect from CR3, including re-planting on the slopes, within the water basins, and conservation areas; 4) the size of the conservation area has been increased and includes a buffer area around the 4 lots to the west; 5) a homeowner’s association will be established as a known entity and its responsibilities will be outlined within the conservation document (subject to the Town Attorney’s review and approval); and 6) an additional 4-foot deep galley added to Lot #2 for the septic and the side yard on Lot #6 was increased in order to move the house further from the Brook. Chris Alford noted that the lower retaining wall has also been extended 20 feet in order to address the excessive slope issue raised by the intervenor. Attorney W. Case agreed to Chairman Loomis’ request to provide a detailed written summary of these changes.

Attorney W. Case noted that the applicant is requesting a waiver of the open space requirement, per his 1/31/07 letter. This has been recommended by Town Staff from the beginning (i.e., no contiguous open space, maintenance issues for the Town), and the conservation easement is being proposed in lieu of that requirement. He noted that 51% of the entire parcel will be conservation area.

Attorney W. Case explained for Secretary Gardow that the Memo of Understanding was an agreement among the parties to adjust the lot lines near the existing shed in order to push house #5 away from the Brook and provide for a drainage easement at the entrance (an additional biofilter swale that will drain the catch basin and water quality basin before final runoff from the entrance and the road hits the Brook). He noted for Commissioner Houlihan that the center island originally proposed for the middle of the subdivision has been removed, per the request of both Town Engineer Richard Sawitzke and the Fire Marshall, to address plowing and maintenance concerns. The drainage remains the same but now has been placed on the perimeter of the cul de sac.

Chairman Loomis confirmed with Mr. Beach his satisfaction with the revised designs and that the Wetlands Commission was comfortable with the design as shown. Chris Alford provided a more detailed overview of the changes to the plans. He noted the expanded conservation area buffer will work to preserve the stream corridor, wetlands, streetscape and plantings around the retaining wall. He confirmed for Commissioner Jansen that the cul de sac remains the same size.

Commissioner Houlihan questioned the intervenor’s engineer’s concerns regarding the undermining of the neighbor’s property behind the retaining wall. Chris Alford noted that the geo-grid to be used will only be about 6 feet behind the wall. John Stewart of CR3 further explained the geo-grid fabric to be used as well as the purposes of the plantings in order to support the wall. He confirmed there would be no impact or undercutting of the neighbor’s property. He further reviewed the proposed detailed plantings for the water quality basin at the entrance, designed in conjunction with George Logan of REMA Ecological Services, for the highest effectiveness. He also reviewed the revised wetland buffer plantings, stressing the sophisticated but appropriate approach taken to identify all existing species, remove invasive species, and interplant native wetland species. Mr. Beach confirmed for Chairman Loomis that the soil type found on this site is ideal for these types of planting treatments, which will work to scrub the water prior to it hitting the Brook. He noted the tremendous benefit that is added to the project by gaining an overland flow at the entrance rather than pipe flow into the Brook, providing another layer of purification for the runoff. Within the cul de sac the chambers have just been moved to the outside, without changes in infiltration and no loss in functionality.

Mr. Beach confirmed for Commissioner Piecuch that the wording in his 2/26/07 memo was in fact the findings of the Wetlands Commission (i.e., ‘the weight of the evidence favors the applicant as opposed to the alternatives provided by the intervenor…’). In reference to the 1/23/07 memo from Michael Klein and his concern regarding erosion into the Brook during road construction, Attorney W. Case reiterated that the Wetlands’ determination that this project will have no adverse impact on the Brook. Chris Alford also confirmed his professional opinion and conclusion is the same. Mr. Beach expressed his comfort level with the plans, especially with the inclusion of the retaining wall and the fact that this area is not a very large watershed and is characterized by high percolation rates.

Attorney Case confirmed for Commissioner Piecuch that, in fact, the plans are consistent with Subdivision Regulations Section III-6, as also raised by Mr. Klein in his 1/23 letter. The original proposal was to cross the wetlands area and use a bridge to cross the Brook. When the wetlands were actually found on the site, the reasonable alternative was to put the entrance where it is now. In addition, large trees have been identified and preserved, the retaining walls have been added to minimize the cut, the width of the road has been decreased, and 51% of the 9 acres will be in a permanent conservation easement, the streetscape has been maintained. He confirmed for Commissioner Piecuch that, on balance, it is preferable to cut the esker than to provide significant filling within the wetlands. George Logan indicated the soil types are different on the site where the houses are proposed than in the wetland area and, in addition, species of special concern were found within the wetland area on the southern portion of the site.

Mr. Logan provided more details as to the construction of the basin at the entrance, noting that with the fill used, realistically it will only take about 1-2 hours for it to drain after heavy rain. Mr. Beach confirmed that, although the homeowner’s association will be responsible for its maintenance, the Town could step in if health and safety issues arise and ensure the homeowner’s association will address them. Attorney Richard Case confirmed for Secretary Gardow that the responsibilities of the homeowner’s association are addressed in the CT Statutes under the Common Ownership Interest Act. Other examples of this in town include Grouse Glen and one on Old Meadow Plain. Notation of the association will be referenced in the conservation easement declaration and be both in the land records and on the mylar.

Commissioner Mead questioned the need to review the wetlands issues, noting the unanimous Wetlands approval of the current plans. Commissioner Jansen concurred, noting the Planning Commission does not have expertise in such matters. Chairman Loomis agreed, but suggested that the Commission needs to understand the basis of the Wetlands’ decision and recommendation. Commissioner Piecuch indicated the Commission is trying to capture the findings of the Wetlands Commission and reincorporate them into the record of the subdivision application, especially in light of the intervenor’s petition.

Commissioner Bednarcyk questioned whether the issues raised in Mr. Sawitzke’s 11/17/06 memo had been addressed regarding the massive amounts of land clearing and excavation for 2 of the lots. Mr. Beach noted the changes in elevation on Lot #6, the house being moved back and the septic being relocated, as well as the lot line changes which will allow the house on Lot#5 to move therefore reducing the amount of disturbance. Attorney R. Case noted that the road has been raised as well (a change in grade over a shorter length) to reduce the cut. With regards to Mr. Sawitzke’s suggestion to reduce the number of lots and use a common driveway, Mr. Beach noted that would significantly decrease the economic viability of the project. Attorney W. Case noted that what is being provided for now is equivalent to an R-80 density in what is actually zoned R-25.

Commissioner Piecuch questioned the issue of the excavation permit. Attorney R. Case noted that that would be a Zoning Commission consideration, however Planning could make compliance with applicable Zoning Regulations a condition of their approval. It is the applicant’s opinion that a permit is not necessary. Commissioner Piecuch noted he wants to avoid ending up with the subdivided lots that are not buildable due to the fact that an excavation permit cannot ultimately be obtained.

Attorney Margaret Rattigan, representing the intervenor H.B. Kaplan, addressed the Commission. She noted the difficulty she has had staying up to date in view of the timing of the applicant’s submission of material. She stressed that the application and subsequent legal notices have always referenced a 4-lot subdivision, which is subsequently what the Planning Commission has jurisdiction over. She referenced the Town Attorney’s letter, which also cites the application as being for 4 lots, and his opinion that the open space needs to be on the 4-lot subdivsion. She questioned the applicant’s calculations regarding the percentages of open space being offered. Referencing handouts she provided the Commissioners, she questioned how the parcels were split and how the lot lines were determined. Attorney Rattigan again referenced the Town Attorney’s 2/8/07 letter and his questioning of whether the cuts that resulted in the 2 lots outside of the 4-lot subdivision meet the applicable requirements. Commissioner Piecuch noted that lot line revisions can be made as long as they result in conforming lots.

Attorney Rattigan went on to indicate her disagreement with the Wetlands Commission’s decision, and suggested they found there were no ‘significant’ impacts rather than ‘absolutely no impact’. She reminded the Commission that under the intervenor’s petition they are not bound by the Wetlands Commission’s decision. She argued that the application does not meet Section III-6 of the Subdivision Regulations, which calls for due regard to be given to natural features, the contours of the land, and large trees.

In response to Commissioner Piecuch, Attorney Rattigan suggested purchasing the adjacent parcel (with the Batterson’s former house), entering through that area and then crossing the stream would be a better option than either the present plans or crossing the wetlands. Commissioner Mead suggested that prohibited the owners from building would deprive them of the right to the economic value of their land. Attorney Rattigan suggested the plans do not meet the Zoning Regulations with regards to the excavation permit and that therefore this site is inappropriate for this development. She suggested fewer lots may be a possibility. She also noted the proposed homes will not be in keeping with the character of the area. A discussion followed with regards to the Zoning Commission’s inability to limit square footage on houses in the development. Attorney Rattigan confirmed for Commissioner Drake that the plans do not provide for enough open space if viewed as a 4-lot subdivision. Mr. Alford confirmed that placeLot #5 does contain a septic system within the conservation easement. Mr. Beach referenced the recently approved banquet facility which had language for maintenance of a septic system within the conservation easement language. Attorney W. Case confirmed the conservation easement for these plans would be updated to include such language.

Mark Austin, engineer for the intervenor, noted that alternatives were submitted to the Wetlands Commission. He noted also that, although it was a unanimous approval, the Chairman did take a significant amount of time to stress that the project needs to be done properly with very strict controls. Mr. Austin further reviewed the amount of maintenance required for the placeCityGlastonbury structures, rain garden, and infiltrators on the lots. Mr. Beach confirmed for Commissioner Cole that the Town would service the drainage structures on a rotating basis. He suggested earlier testimony was erroneous that placeCityGlastonbury structures remove fines. He confirmed for Commissioner Piecuch that he was predominantly satisfied with the recent responses by Mr. Alford to these issues, but was still not comfortable with the drainage plans for the cul de sac and that an extra layer of protection could be added. It is also his opinion that the upper retaining wall should be extended and curved into the slope for maximum effectiveness.

Attorney Rattigan concluded by noting that despite the Herculean efforts by the applicant to make the plans work, this development is not an appropriate subdivision on this particular piece of land. The size of the parcel is too small, wetlands and drainage issues exist, the open space requirement is not being met, several waivers are being requested and, overall, it does not fit in with the Plan of Conservation and Development. She requested the Commission deny the application. Attorney Rattigan and Mr. Austin both agreed to also provide their comments from this evening in writing to the Commission by Thursday.

Robert Roden, addressStreet360 West Mountain Road, noted that although issues have been addressed since the Wetlands hearing, they have now resulted in a smaller site within which to work. He suggested the only way these plans will work is if each of the experts representing the applicant tonight were to be present on the site every day during the project. He indicated the land has been open space and has only just recently changed hands over the last couple years. He characterized the plans as ‘coming too close to the edge on almost every issue’. His top three concerns include: 1) any additional run-off added to the Brook will affect his property; 2) silt and erosion impacts on the Brook during construction; and 3) cutting through the esker requires an excavation permit. Commissioner Jansen requested Mr. Roden submit any technical or specific information regarding his concerns to the Commission by Thursday 3/1/07.

In response to Commissioner Bednarcyk, Mr. Alford stressed that the applicant is requesting a waiver of the open space requirement and is providing a conservation easement to fulfill the intent of that requirement. He reviewed their specific calculations. He and Attorney R. Case suggested there would be sufficient open space available on the 4-lot subdivision including the pieces to be owned by the homeowner’s association. He further indicated that regarding the lot lines, all cuts that have been performed have created conforming lots. And in his opinion, sufficient testimony has been made to disprove Mr. Austin’s comments regarding drainage in the cul de sac. Mr. Logan clarified his prior statements regarding the CityplaceGlastonbury basins and indicated that, although they do not take out fines, with the existing soil type he does not anticipate a lot of fines will be generated on this type of road. He noted, too, that the infiltrators not only have holes for the water to filter through on the bottom, but also the sides as well. Further, in his opinion, the esker is neither a significant esker nor is it a significant geological feature. It is not significant from a natural resources perspective and it simply comes down to a matter of aesthetics. He argued that Mr. Stewart’s revised plans work to preserve the natural look of the site. He referenced the development near addressStreetTalisman Road as a precedent for development on this type of feature with similar elevation.

Mr. Peck distributed a map of the parcel, indicating a neighbor has inquired whether the town would be interested in selling it. He indicated the parcel is not actually classified as open space, but rather is noted on the map as ‘to be conveyed.’ The parcel could have been set aside to leave open the possibility of realigning the intersection or to put in utilities. Mr. Sawitzke is not opposed to the town selling the parcel but would like to reserve the right to perform road or utility work if necessary. In response to Chairman Loomis, Mr. Peck noted that a notation about line of sight issues could also be included among the restrictions in the transfer documentation. He also noted for Commissioner Jansen that the possibility of a bike path was also something that will be added. In response to Commissioner Piecuch, Mr. Peck noted that restrictions could be put in so that lot lines could not be changed and a house be put on the parcel, which is zoned R-15.

Michael Girard, addressStreet352 Firetown Road, provided a brief history of this small parcel noting it was part of an initial 112-lot subdivision owned by his father. In his opinion, this parcel was either set aside as open space, although not noted specifically, or was to allow for the re-alignment of Owens Brook to Firetown. He expressed his opinion that it would be a mistake to get rid of this small parcel, even if specific restrictions were included.

Mr. Peck stated that a recommendation has been given to the Board of Selectmen, and agreed upon, to retain Robinson & Cole for the purposes of having an attorney available with expertise in the review of large and complex applications, specifically with regards to the River Oaks project. Individuals such as Dwight Merriam, Bob Sitkowski and Brian Smith will be among those attorneys with a wide breadth of experience and expertise in such applications that the land use commissions will have access to. Mr. Peck and Brandon Robertson will be the gatekeepers in terms of access to those attorneys when applications arise.

There is also a 3/12/07 Board of Selectmen public hearing to discuss an ordinance drafted by Mr. Peck with regards to the retention of specialists in such areas as traffic, the environment, and economic analysis for large and complex applications. Individual commissions cannot impose such fees on applicants and therefore an ordinance is needed. Mr. Peck indicated the idea is to use these specialists on rare occasions when that particular expertise does not lie with Town Staff or commission members. Procedures need to be determined regarding the negotiation as to who gets hired and how much both the Town and the applicant will incur. Commissioner Bednarcyk stressed how important it is for the Commissioners to have access to such experts as the liability falls on the Commission.