PLANNING COMMISSION MINUTES
MAY 8, 2007
REGULAR MEETING
I. CALL TO ORDER
Chairman John Loomis called the regular meeting of the Planning Commission to order at 7:05 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, Brad Mead, and Mark Drake, with Charles Houlihan arriving at 7:25 p.m. Also in attendance was Hiram Peck, Director of Community Planning & Development, as well as other interested parties. Charles Houlihan and Brad Mead left the meeting at approximately 9:20 and 9:45, respectively.
II. SEATING OF ALTERNATES
Chairman Loomis appointed Mark Drake as alternate for the vacant Regular Commissioner seat and Carol Cole as alternate for Charles Houlihan.
III. PUBLIC HEARINGS
a. Application of David W. Shaw, Executor of the Estate of Ruth H. Shaw, Owner, Gregory F. DeManche, Attorney, Agent, for a two (2) lot re-subdivision on property located at addressStreet70 Notch Road in the R-40 Zone. (continued from 4/24/07 meeting)
Attorney DeManche was present this evening and submitted a letter on behalf of the applicant requesting a 30-day extension in order that the necessary due diligence on the property (i.e., surveying, soil testing, etc.) could be completed. Following some discussion as to the statutory timeline requirements for action by the Planning Commission on this application, Attorney DeManche agreed to do his best to present the full application at the Commission’s next meeting on 5/22/07. Per the suggestion of Mr. Peck, Attorney DeManche will work with his client in order to schedule a site walk with the Commissioners prior to the 5/22 meeting. The public hearing was continued until 5/22/07.
b. Application of Kevin A. North, President, Simsbury Fire District – Owner, Kevin Kowalski, Fire Marshal, Agent, for a two (2) lot re-subdivision on property located at addressStreet251 Hopmeadow Street in the I-1 Zone. (continued from 4/24/07 meeting)
Citing correspondence received from the Fire District, Mr. Peck explained that the applicant was withdrawing their application. Questions regarding the location of access-ways, the size of the property, and the location of existing floodplains still need to be determined. It is also unclear whether a free cut is allowable, and the existing zone really does not permit subdivision of a lot the size they were contemplating. Further, it would be difficult to re-zone the proposed 1-acre parcel without creating spot zoning.
IV. ZONING COMMISSION REFERRAL
Proposed Zoning Regulations amendment submitted by William Miller to AMEND Article Seven E. Uses Permitted in B-1, Restricted Business Zones and to ADD Section O. Uses Permitted in all Business Zones or Mixed Use Zones to adopt changes to Zoning Regulations to restrict gross floor area and access requirements for big box retail stores.
Chairman Loomis noted the Zoning Commission is waiting for the Planning’s referral prior to finishing their deliberations.
Bill Miller addressed some of the issues raised in Mr. Peck’s 5/2/07 Staff Report. As for the traffic data, Mr. Miller’s opinion is that the data stands for itself. A resume for the study’s author is included in the application, including a reference to the sources and documents from which the traffic data was taken. Mr. Miller agreed he would cooperate in any way in order to verify the 2800 petition signatures collected. He indicated, however, that the Town Clerk originally recommended circulating a petition to portray the public’s sentiment even though there would be no value to the legalistic process in doing so. The signatures also portray that this is not a NIMBY issue, with all the various parts of town being represented. Chairman Loomis acknowledged the signatures, but noted it
did not bear directly on what the Commission is statutorily charged with in the review of this amendment. Mr. Miller disagreed, noting that both the Zoning and Planning Commissions were elected representatives and had an obligation to take into consideration what the people want. Chairman Loomis also pointed out the disconnect between the petition language and the proposed zoning amendment language.
Mr. Miller addressed Mr. Peck’s question as to the use of CityBrattleboro as a comparison to placeCitySimsbury. Mr. Miller indicated this data was simply used as back-up to emphasize the point that there is little evidence of the economic benefit to Big Box development. Mr. Miller referenced a resident who was very familiar with placeCityBrattleboro and spoke at the Zoning Commission meeting. In response to Commissioner Houlihan, Mr. Miller indicated the Internet is a plentiful source for Big Box studies, other than those done by Wal-Mart. After some discussion, Commissioner Drake cautioned against veering away from the discussion at hand and connecting it to the Konover project.
Mr. Miller and the Commission then went through Mr. Peck’s concerns regarding the actual wording of the proposed regulation. In Mr. Peck’s opinion, the proposed wording provides for a circuitous route through the regulations and could cause both confusion and a potential for interpretation problems down the road. Commissioner Houlihan indicated a further concern regarding the wording is the fact that existing properties would be reclassified as non-conforming (i.e., those less than 20,000 square feet without a curb cut to Route 44). He cited Fitzgerald’s Plaza as an example. Mr. Miller was under the perception that no buildings in town were greater than 40,000 sq. ft. and admitted this issue would be one of the negatives of this proposal.
Commissioner Jansen questioned whether the 40,000 sq. ft. cap referred to a building footprint or one with multiple floors and expressed his confusion with the wording. Mr. Miller indicated that this specific application does not speak about multiple floors, but rather simply a total of 40,000 sq. ft. and that would be through a special exception. Commissioner Houlihan suggested one of the fundamental issues needing to be addressed with the amendment is that it conflicts with the Draft POCD recommendations related to the square footage caps. Chairman Loomis indicated the Draft Plan would allow for just under a 25,000 sq. ft. footprint (or 50,000 for 2 floors) in the Southern Gateway and just a little more in the Northern Gateway at a 30,000 sq. ft. footprint (or 60,000 sq. ft. for 2 floors).
Mr. Miller acknowledged and apologized for a typing error in O.1 which should reference Article 5:J on site plans. Finally, Mr. Miller disagreed with Mr. Peck’s opinion that the proposed Special Exception process would subject all potential uses to that process and make it more cumbersome.
Commissioner Jansen suggested this amendment would serve to tie a developer’s hands in a mixed-use situation, such as the proposed Dorset Crossing, where the very nature of mixed-use is to allow for flexibility of uses according to the market over time. Mr. Peck suggested this amendment would subject any change in use to a public hearing process.
Commissioner Houlihan raised issues with how the proposed amendment calculates the size of the retail space, i.e., the sum of all the individual stores. He questioned whether the 40,000 square foot limit would be applicable regardless of the size of the land. Mr. Miller suggested section O.3 a-c are regulations being used now around the country to address the various ways developers have found to get around the caps in retail size (i.e., no 40,000 sq. ft. on the same or adjacent lots, no seasonal or temporary use buildings in addition to the size cap, and no multiple large retail stores connected by archways). Commissioner Houlihan expressed concern regarding the restriction this amendment would have on the remaining large spaces in town for development (i.e., the Gateways) where a 40,000 sq. ft. limit on a 60-acre area
would be very different from that of a much smaller lot. Mr. Peck suggested O.3 a-c are all very difficult to understand and would be very difficult to enforce or interpret consistently. He acknowledged that other towns have imposed such restrictions but have done so in a very clear manner. In response to Chairman Loomis, Mr. Peck indicated this amendment would be a hindrance to development but not for the right reasons and does not accomplish the ultimate goal of the author. Many necessary definitions (i.e., gross floor area, etc. ) are not provided. Mr. Miller indicated, under the advice of his attorney, a decision was made to go with a somewhat middle range ‘flavor’ of regulation in terms of its complexity.
Referencing Land Use Policy 7 from the ’94 Plan of Development, Commissioner Bednarcyk commented that even if she chose tonight to not vote for this particular complex amendment she did see the merit to the town of doing something similar to this.
The Commission then had a lengthy discussion as to their role and available options in acting on the referral, i.e., passing on a simple positive or negative referral or their ability to include an expression of agreement with the intent of the amendment but not the actual wording as presented. Later in the meeting, Commissioner Bednarcyk even suggested denying without prejudice as a possible option. Commissioner Drake, Mead and Bednarcyk all suggested some wording should be included to express agreement with its intent as consistent with the Draft POCD. Commissioner Houlihan suggested the intent language would garble the referral and this should simply be a ‘yea’ or ‘nay’. An expression of the intent should be reserved for the Plan. Commissioner Jansen agreed. Secretary Gardow
suggested a yes or no vote would be appropriate, but that the minutes would reflect the debate and everyone’s position as to the interpretation of their vote.
Commissioner Jansen motioned to give a negative referral to the Zoning Commission based on what was presented tonight. Commissioner Houlihan seconded the motion. This motion was amended later on in the meeting.
Chairman Loomis suggested the Commission needed to advance support, rooted where they can, in the ’94 Plan. Secretary Gardow suggested using the Staff Report which outlines several difficult statements that would be very difficult to enforce and points out potential pitfalls if this regulation were attempted to be enforced. The Commission agreed on that language, as well as a reference to existing businesses possibly becoming non-conforming and the difficult, confusing language of the proposed amendment. Commissioner Jansen suggested including the fact that the amendment is contrary to the idea of mixed use. After review, the Commission could not find any applicable references within the ’94 Plan. Mr. Peck suggested the Commission had enough items to vote on the referral and agreed they could simply state that
there is nothing sufficiently relevant to cite from the ’94 Plan.
Mr. Miller suggested, in light of the view of the residents in town, that the Commission make a positive referral but complain about the language. Commissioner Cole acknowledged the residents’ desires, but suggested the issue is with how to word such a desire without limiting the good possibilities that could happen and truly knowing what the implications would be on future economic development in town. Mr. Miller suggested a negative referral would send a message to the residents. Commissioner Drake suggested the Commission could achieve the same goal by providing a positive referral, but request the very flawed language be changed. Commissioner Jansen did not agree, suggesting it was a much more complicated issue. Commissioner Mead cautioned a negative referral could undermine the Draft Plan. In Chairman
Loomis’s opinion, in terms of the charge of the Planning Commission a positive referral would not be an option. Commissioner Houlihan suggested this was not a referendum on Big Box, but rather a referral on a specific amendment.
Commissioner Mead suggested amending the motion to indicating that, although the Commission is giving a negative referral, they agree with the intent of the applicant as expressed in the current draft of the new POCD. Commissioner Jansen indicated he could not vote for ‘agree’ but suggested it be changed to ‘understand’. Both Commissioners Mead and Drake stressed the need for the word ‘agree’.
Commissioner Jansen amended his original motion to include the language regarding the Staff Report’s findings and the review of the ’94 Plan. He did not, however, want to include language regarding the intent of the amendment since he was not in agreement with its intent to limit square footage sizes, as has historically been his position throughout the entire Draft Plan process.
Commissioner Jansen motioned to give a negative referral to the Zoning Commission based on what has been presented this evening:
The 5/2/07 Staff Report points out pitfalls which would be difficult to enforce if this regulation were to be implemented:
• Existing businesses could be considered non-conforming;
• The proposed Zoning Regulation amendment language is confusing and difficult to follow.
Upon review of the 1994 Plan of Development, the Planning Commission concludes there are no sections directly relevant to this referral.
Commissioner Houlihan seconded the motion. The motion failed by a vote of 1-5, with Commissioner Jansen voting in favor and Chairman Loomis, Secretary Gardow and Commissioners Drake, Bednarcyk, and Cole voting against.
Language was then added to the motion by Commissioner Drake.
Commissioner Drake motioned to make a negative referral to the Zoning Commission regarding the proposed Zoning Regulation Amendment:
Although the Planning Commission agrees with the intent of the applicant, as expressed in the current Draft of the new Plan of Conservation and Development, the 5/2/07 Staff Report points out pitfalls which would be difficult to enforce if this regulation were to be implemented:
• Existing businesses could be considered non-conforming;
• The proposed Zoning Regulation amendment language is confusing and difficult to follow.
Upon review of the 1994 Plan of Development, the Planning Commission concludes there are no sections directly relevant to this referral.
The motion was seconded by Commissioner Bednarcyk and approved by a vote of 5-0, with Chairman Loomis, Secretary Gardow and Commissioners Drake, Bednarcyk, and Cole voting in favor, and Commissioner Jansen abstaining.
For the record, Commissioner Jansen noted he abstained because, although he agreed the Planning Commission should provide a negative referral, he did not agree with the expression of intent.
V. APPROVAL OF MINUTES of April 24, 2007.
Secretary Gardow motioned to approve the minutes of 4/24/07. The motion was seconded by Commissioner Bednarcyk and approved unanimously, with Commissioner Jansen abstaining from the vote.
VI. DISCUSSION OF PROPOSED ORDINANCES (preparatory to the 5/14/07 Public Hearings)
Mr. Peck indicated the fees ordinance, which had been redrafted by the Town Attorney, sets a process for obtaining additional technical expertise (i.e., engineering, traffic, environment, etc.) for larger and complex projects when needed where the expertise would be beyond the ability that Town Staff can provide. The particular Commission involved would obtain proposals from identified consultants, a peer review fee would be set, and the request would be submitted to the Board of Selectmen for their approval. Any fees not expended on the project shall be refunded. In addition, if the costs exceed the approved fee the applicant would be billed for the excess costs up to 150% of the approved fee. Mr. Peck assured Chairman Loomis that the land use board involved in the project will be in included in the consultant
selection process. Chairman Loomis suggested the language in the ordinance be changed in order to clarify that issue. Commissioner Bednarcyk suggested the ordinance wording be changed to include ‘large and/or complex’ projects.
Mr. Peck indicated the biggest hurdle to overcome will be ensuring that this process is not abused or overused. An open dialogue will be necessary with the developer, land use commissions, and Board of Selectmen. He confirmed that the consultants will work for the Town but the developer has the right to be involved in the process due to the fact they will be paying for the services.
In Chairman Loomis’s opinion, this ordinance afforded the land use commissions information at a level of thoroughness, quality, and professionalism they would not otherwise have. In Commissioner Jansen’s opinion, having the Board of Selectmen involved provides a good balance to the process. He expressed reservations, however, with regard to whether the Town should have some financial stake should the fee go over the agreed upon amount. He stressed the need for the process to be used judiciously.
Secretary Gardow motioned to send a positive referral to the Board of Selectmen regarding the proposed ordinance regarding fees for specialists. The motion was seconded by Commissioner Bednarcyk and approved by a vote of 5-1, with Chairman Loomis, Secretary Gardow and Commissioners Drake, Bednarcyk, and Cole voting in favor, and Commissioner Jansen voting against.
For the record, Commissioner Jansen noted he wished to have more time to review and to hear the comments at the public hearing before making his decision.
Mr. Peck described the second ordinance which would allow for joint public hearings between the various commissions in town, not necessarily just for land use applications. Although historically these joint meetings have been held on an informal basis, such an ordinance is not currently on the books.
Secretary Gardow motioned to send a positive referral to the Board of Selectmen on the proposed ordinance regarding joint public hearings. The motion was seconded by Commissioner Jansen and unanimously approved.
VII. DRAFT 2007 PLAN OF CONSERVATION AND DEVELOPMENT (POCD)
• Next Steps
Chairman Loomis indicated work continues on the maps after a 4/27 mapping meeting. The intention is to go live with the Draft Plan on 5/25/07. Commissioner Bednarcyk noted all those involved are working on sorting out maps such as Historic Places, Open Space and placeCitySimsbury’s Treasures (formerly known as Character Places). Chairman Loomis said that if the Draft is published on 5/25 the earliest date for a public hearing would be in August. However, realistically that would more likely take place in September. Mr. Peck will look into available dates at the High School Auditorium for the last 3 Thursdays in September.
VIII. STAFF REPORTS
Mr. Peck indicated there is a good possibility there will be a joint commission workshop on 5/30 with Design Review and the other commissions. A specialist will come in to discuss the PDD as it relates to design criteria.
IX. COMMUNICATIONS
Chairman Loomis noted an initial meeting was scheduled for 5/9 regarding the PDD with the Commission Chairmen, Dwight Merriam, and Hiram Peck. Mr. Peck is trying to arrange a joint workshop on either 5/17 or 5/24 for all of the Commissioners regarding the PDD.
The Planning Commission’s next regular meeting will be 5/22/07.
X. ADJOURNMENT
Commissioner Jansen motioned to adjourn the meeting at 10:00 p.m. The motion was seconded by Secretary Gardow and unanimously approved.
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Ernest B. Gardow, Secretary
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