Simsbury, CT - Planning Commission Minutes

Chairman John Loomis called the special meeting of the Planning Commission to order at 7:10 p.m. in the Program Room of the Simsbury Library. The following members were present: Secretary Ernest Gardow, Susan Bednarcyk, and Gregory Piecuch, with Ferguson Jansen, Carol Cole, and Mark Drake arriving just after the call to order. Also in attendance was Hiram Peck, Director of Community Planning & Development, as well as other interested parties.

Attorney William Case re-introduced the members of the team and provided a brief summary statement. It is their belief that the application, as submitted, is in full compliance with the regulations of the Town of placeCitySimsbury. Attorney W. Case asked the Commission to close the public hearing and vote in favor of the application, as well as to provide the 2 necessary waivers. The first is a waiver for the grade requirement for the first 150 feet of the road as recommended by the Town Engineer. The second is a waiver for the open space requirement. In lieu of the open space requirement, the applicant is proposing an exclusive and protected conservation easement area within the proposed subdivision. This area totals 51% of the entire 9-acre parcel and will provide permanent protection and a vegetative buffer for the existing neighbors, as well as protect the onsite wetlands and streetscape. He again referenced the Town Staff’s recommendations that the Town does not want fee-ownership of any open space in this property. Attorney W. Case noted the Town has historically accepted conservation areas in lieu of open space requirements where appropriate. The applicant will continue to retain the experts needed to execute this subdivision and Attorney W. Case ensured Greg Maglieri would be on site for the entirety of the process. He noted the complete professional engineered plans have been developed and modified in response to both the Wetlands and Planning Commissions, as well as the intervenor, and fully comply with the Subdivision Regulations.

In response to Secretary Gardow, Chris Alford reviewed the boundaries of the free cuts and described how each the parcels has been achieved. Mr. Alford confirmed that the parcels to be included in the 4-lot subdivision are those located on the northerly side of the entire parcel. In response to Commissioner Piecuch, Mr. Alford confirmed that the lot line revisions noted in Mr. Alford’s 2/28/07 memo have not yet been done but would be recorded prior to the recording of the subdivision plan and would be contingent on approval of this plan.

Mr. Alford then reviewed the areas to be included in the conservation easement over the entire parcel, totaling 4 acres, as well as the 2 additional parcels totaling .6 acres to be owned and maintained by the homeowner’s association. The conservation easement that is applicable only to the 4-lot subdivision totals 0.7 acres. In response to Chairman Loomis, Mr. Alford indicated that 20% of the total area in the 4-lot subdivision would equal 0.8 acres and that 20% of the buildable area would equal 0.7 acres. When combined with the areas to be maintained by the homeowner’s association the total becomes 1.1 acres within the 4 lots. Attorney Richard Case explained to the Commission that the applicant is requesting a waiver of the open space requirement. A conservation area can be used in order to effectively replenish back those areas where there will be no buildable structures. He noted that, although the homeowner’s association’s portions are not included in the easement because they need to be maintained by the association, they will be permanently grassed areas. He also noted that there are an additional 3 acres in the southern part of the subdivision which are not part of the 4-lot application. Attorney R. Case suggested they could also add the 35 feet located at the top of the subdivision, which will not be touched, to bridge the 0.1 acre difference. Alternatively, the association-owned portions could be added to the easement with the stipulation that the association would be responsible for the maintenance of the walls and vegetation in that area.

Commissioner Jansen questioned whether the open space issue comes down to a matter of splitting hairs. Even though legally the Commission cannot look at the parcel as a whole, in terms of the benefit to the Town in getting 51% of open space on the entire parcel he encouraged the Commission to seriously think about it. Commissioner Bednarcyk cited both the letter from the Director of Parks and Recreation and Town Staff’s opinion that they do not wish to take on new open space in this area and indicated that is not in their purview, but rather that of the Planning Commission. Further, she questioned the free cuts and noted that, in her opinion, this is actually a 6-lot subdivision. Attorney R. Case clarified the cuts again and noted that boundary lines can be rearranged as long as it does not create a non-conforming lot. Attorney R. Case clarified for Commissioner Bednarcyk the areas set aside for the conservation easement along the Brook, with nothing planted on the west side, but plantings on the east side to enhance the buffer. He noted that in their deliberations the Wetlands Commission treated the parcel as a whole, not as either a 4-lot or 6-lot subdivision.

Commissioner Drake expressed his concern with the free cuts and how placeLot #5 fits into the subdivision. Attorney R. Case further explained the cuts and the lot line changes that resulted in the various parcels and lots, noting the boundaries can be changed to create conforming lots due to the fact that the entire parcel is owned by the same individual. Mr. Alford explained that there were 2 parcels to begin with, both split once, to create 4 parcels – the Peterson’s, Lot #5, placeLot#6 and the area for the proposed 4-lot subdivision. Attorney R. Case further explained that after the splits the boundary lines were rearranged in order to create placeLot#5. He confirmed for Commissioner Drake that a portion of both free cuts were combined to create the 4-lot subdivision area.

Attorney Margaret Rattigan distributed maps done by Mark Austin, as requested by Howard Beach, that had been submitted to Wetlands and provided feasible alternatives to the proposed subdivision plan. In summary, she indicated the applicant has gone to extreme measures to make this subdivision fit into this space and there are alternatives, including the possible deletion of placeLot #1. She described the subdivision as being ‘shoehorned’ into this space. In her opinion, it is not an appropriate subdivision for the variety of reasons set forth in their submissions, including: the access is too small; the slopes are too steep; there is no open space; the boundaries of the conservation easement are not all within the 4-lot subdivision and do accommodate some septic systems; and there are serious drainage concerns, as well as concerns regarding the Brook. Attorney Rattigan requested the Commission close the public hearing and deny the application or deny without prejudice and have the applicant come back with alternatives that would fully satisfy the subdivision regulations (i.e., less lots, use private drive vs. public road). She pointed out that part of the conservation easement includes wetlands, which would not be buildable anyway. She closed by thanking the Commission for their time.

Attorney R. Case and Mr. Alford confirmed for Commissioner Jansen that the average lot size is 33,000 sq. ft. and that the average house size would be 3,500-3,800 sq. ft. Attorney R. Case again reiterated that the although the lots are zoned R-25, the proposed density is equivalent to approximately an R-80 zone. Attorney Rattigan provided her math calculations regarding the open space percentages, with the 20% requirement equaling .884 acres and the applicant only providing 0.71 acres. Mr. Alford argued she was mistaken.

Hiram Peck distributed a 3/6/07 letter with the Town Attorney’s responses to the Commission’s questions regarding whether the proposed subdivision was properly noticed (i.e., 4 lots versus 6 lots), as well as whether or not the Commission should condition their approval based on the applicant obtaining an excavation permit. After the Commission’s review of the letter, Mr. Peck provided an overview of the Town Attorney’s answers. Based upon the review of the documentation, it is the Town Attorney’s opinion that the notice for the 4-lot subdivision was ‘legally sufficient’. The Town Attorney also noted that the proposed condition of the applicant obtaining an excavation permit from the Zoning Commission ‘would not be appropriate or authorized by StateplaceConnecticut law’. Mr. Peck continued his comments by indicating that wording in the motion such that Zoning requirements need to be satisfied would not be considered a condition of approval.

Mr. Peck referenced Attorney Rattigan’s suggestion of using a private driveway, noting that it would not be possible to do that the way the regulations are currently structured. Further, there are no existing conservation easement standards in the regulations and he cautioned the Commission that this is an administrative process and standards should not be made up as they go along. In response to Commissioner Cole, Mr. Peck noted that the applicant has recognized the Town’s lack of interest in having open space on this parcel, has requested the waiver, and in the meantime as a show of good faith has proposed a conservation easement on the property. Commissioner Bednarcyk suggested that in the past the Planning Commission has moved the open space if it makes more sense for the subdivision (for example, addressStreetAvery Way), or required a conservation easement in lieu of open space. Mr. Peck referenced the Wetlands’ deliberations and ultimate decision and noted that if the Commission decides to move the open space he cautioned them to have a reason as to why they would do that and not simply to eliminate lots. Mr. Peck indicated to Commissioner Drake that combining the homeowner’s and the conservation easement piece in order to achieve a certain percentage of open space is not necessarily normal but rather characterized it as a ‘hybrid in a lot of ways’. Attorney Richard Case, again, expressed the applicant’s willingness to add the 35 feet running the distance along the top of the subdivision, which would make up the difference. Attorney Rattigan commented on how much this proposal differs from other subdivisions suggesting it would be odd and inappropriate to create a homeowner’s association in a subdivision like this.

In response to Secretary Gardow, Mr. Peck indicated that to ensure the excavation permit issue gets on the Zoning Commission’s agenda the Town Attorney has suggested in his 3/6/07 letter that Planning can ‘obtain additional assurance by requiring an appropriate note on the subdivision mylar that no zoning certificate or building permits for the subdivision will be issued until all requirements of the Simsbury Zoning Regulations have been met’.

Commissioner Piecuch posed to Mr. Peck the hypothetical situation of this being a watercourse instead of an esker and the Wetlands Commission denying the application and therefore the applicant could not get approval of the road. He requested Mr. Peck’s opinion as to whether or not Planning should then approve or deny the subdivision application. Mr. Peck responded that theoretically Planning can approve the application anyway, but realistically that probably would not happen on the basis the applicant could not get access to the site. Commissioner Piecuch suggested, with regard to this application, it is not known whether the applicant will have access to the site or not because Zoning has to make a determination. Mr. Peck acknowledged the way the Statutes are currently constructed does present some difficulties for commissions. In this particular situation, the way the Statutes are structured, Zoning gets the final call on the excavation permit. He suggested the Town Attorney’s proposal is a way to deal with that. Commissioner Piecuch suggested the end result could be subdividable lots that have been subsequently sold off and yet ultimately not be buildable. Mr. Peck suggested the applicant could technically file the subdivision plans and if there is a note on the map the proposed buyers would have notice of that requirement prior to getting a building permit. In his opinion, this would act as a trigger to prevent Commissioner Piecuch’s scenario from happening. Mr. Peck further indicated to Commissioner Piecuch that, in his opinion, what the Town Attorney has offered is not tantamount to a conditional approval.

Commissioner Piecuch stated a variety of the issues he has identified as still needing clarification. The first is the nature of the lot line revisions and the cuts and he referenced a 2/20/07 memo from Alford & Associates which provides a rationale for those cuts and that he will take a closer look at. Commissioner Piecuch indicated the whole excavation permit question is an issue of whether or not a road can be built into the proposed lots. He noted after review of the Town Attorney’s letter and the proposed motion that that issue will probably take care of itself. He raised the issue of whether or not the applicant has given due regard to the natural features and contours of the land, as required in Section III-6 of the Subdivision regulations. Finally, he does want to take a closer look at the proposed feasible and prudent alternatives, especially in light of the intervenor’s petition and their specific list of alleged harms to the environment that this proposed plan would have. Commissioner Jansen requested a list of the Wetland Commission’s responses regarding those alleged harms to the environment.

Mr. Peck noted the receipt of Rich Sawitzke’s memo today which lays out the issues Mr. Sawitzke had raised with regard to this parcel. Commissioner Jansen questioned if, other than mowing costs, would there be any compelling reason to sell the parcel. Mr. Peck explained that the abutting neighbor asked to buy the property in order to maintain a garden on it and that has triggered this process. Planning’s decision would then go to the Board of Selectmen, who may then ultimately decide either to sell or not to sell the parcel. In response to Secretary Gardow, Commission Jansen cited from the memo a suggestion that a 10-foot strip be retained for a possible walkway and he suggested that would satisfy his request to be able to put a bike path there.

Commissioner Bednarcyk cautioned opening a can of worms and going down a slippery slope by selling this parcel in order to improve one person’s lot. She stressed the purpose and intent of open space and indicated she would not want to support this. Chairman Loomis noted that the case has been made, at least in general terms, for identifying nuisance open space parcels. Mr. Peck stated each situation needs to be evaluated on its own merits. He noted the draft Plan does talk about getting rid of nuisance open space, but he encouraged the Commission to provide specific reasons as to why they should be sold. Commissioner Bednarcyk clarified she has never been supportive of the nuisance open space idea. She stressed creative methods need to be found in order to fund and maintain open space in town and that it is not up to Parks and Recreation as to what Planning chooses for open space. Commissioner Jansen acknowledged her conviction, but encouraged the Commission to be logical.

In response to both Commissioners Cole and Jansen, Mr. Peck indicated that if the property is sold, the Board of Selectmen can recommend certain specific protections for such things as utilities and sight line issues. In response to Commissioner Bednarcyk, Mr. Peck suggested that based on his analysis there is little possibility of the neighbor expanding their house if the land is purchased.

Commissioner Piecuch noted he had more questions than answers on the issue, including the sale price, to what extent would this parcel be covered by conservation easements and what exactly would be prohibited and allowed, and what exactly the abutter wants to do with the land. In his opinion, the land should not be sold just outright but conditions should be worked out to address the issues that have been raised. Mr. Peck confirmed for Commission Piecuch that the BOS is not compelled to accept the highest bid and, in fact, can reject any and all bids. In addition, if certain recommendations and restrictions are put forth, the buyer ultimately may not want to agree to them. Chairman Loomis suggested whatever restrictions or recommendations are proposed would need to run with the land indefinitely. Commissioner Piecuch suggested if the issue is merely access for a garden an easement could be given for that purpose on the parcel.

In response to Commissioner Bednarcyk’s hypothetical situation of the highest bidder not being the abutter, Commissioner Drake suggested the abutter has been taking care of the property and that no one else would even make an offer. In addition, if purchased, this parcel would merely increase the value of the abutter’s house and subsequently add to the Grand List. Commissioner Bednarcyk cautioned against setting a precedent.

Michael Girard, addressStreet352 Firetown Road, noted he disagreed with Rich Sawitzke and stressed that there is a sight line issue with this parcel. If the property is sold, there will ultimately be no control over that. Even if restrictions are placed on the parcel, he stressed the difficulty of enforcing those restrictions. He indicated that the Town is not in the business of selling land and he characterized it as ‘foolish’ if they should decide to sell this parcel, especially in light of the safety issue with regards to the sight line. Commissioner Piecuch suggested the town would not have to sell the land in order to give the abutter access to garden on the parcel. Commissioner Jansen agreed with Mr. Girard noting that in his opinion there is a sight line issue at the intersection.

Chairman Loomis commented on Mr. Girard’s passion regarding this parcel. Commissioners Drake and Bednarcyk both agreed with the sight line and safety issue. Acknowledging the fact that the BOS can still pursue the possibility of allowing the abutter to garden without selling the property, and that the minutes from tonight’s meeting would be forwarded to them to explain their reasoning, the Commissioners agreed to recommend to retain the property.

The Commission had a lengthy discussion regarding changes to be made to the minutes prior to voting on them. Commissioner Piecuch suggested a change on page 2 regarding the open space discussion to include wording to the effect that the Commission’s actions needed to be informed ones with regard to recommending an exact amount to be added into the Capital Improvement Program (CIP). Commissioner Bednarcyk suggested also adding a statement indicating that Rich Sawitzke said it was fine to put in a specific amount. After discussion as to whether or not to go back and listen to the tapes to get Mr. Sawitzke’s exact words, it was agreed to add Commissioner Piecuch’s wording, but not the reference to Mr. Sawitzke. In Chairman Loomis’ opinion, he did not want to get into a situation where the Commission is going back to the tapes after the fact. Secretary Gardow suggested Commissioner Bednarcyk could listen to the tapes and enter a statement into the record as part of the minutes for the next meeting.

Commissioner Piecuch noted that his record has been misrepresented continually, not necessarily by anyone on the Commission but by others, and that is why it is very important for him to have his positions clear in the minutes. He proposed changes to page 4, in reference to the discussion around SHARE’s proposed zoning amendment and the Commission’s actions needing to comply with their statutory powers. Chairman Loomis cautioned against individually elaborating on the minutes if they are essentially accurate. Commissioner Piecuch indicated his only goal was to have the minutes reflect the words that he stated, which had been a prepared statement written prior to the 2/13/07 meeting. He indicated the wording he was proposing tonight better reflected what he said that night.

Per the request of a resident, Mr. Peck presented a map showing a 100-ft. conservation easement along the rear of the Simsbury Crossing (addressStreetWest Mary St.) subdivision. The abutting resident wishes to build a pool but cannot encroach on the easement. The resident is proposing to take down 3 or 4 taller, older trees that overhang the area and replace them at a 4:1 ratio with a variety of dogwoods, hemlocks and rhododendrons. Secretary Gardow characterized it as a fair exchange. The Commissioners acknowledged that these new plantings would actually create more of a privacy screen.

The next meeting will be 3/13/07 at Eno Hall. The Amphitheater has been reserved for 3/27/07, but that is subject to change. Both meetings will be dedicated to the Special Areas section. The addressStreetWest Mountain Road subdivision will also be addressed at the 3/27 meeting. Mr. Peck will review with Chairman Loomis the draft motions for that application and then send on to the Commissioners.