Simsbury, CT - Zoning Commission Minutes

Austin Barney, Chairman, called the Regular Meeting of the Zoning Commission to order at timeHour19Minute07:00 p.m. in the Main Meeting Room of the Simsbury Town Offices. The following members were present: Garrett Delehanty, Jr., Patricia Askham, and Alternate Madeline Gilkey. Also in attendance were Hiram Peck, Director of Planning; Commission Clerk Debra Sweeney and other interested parties.

Attorney T.J. Donahue spoke on behalf of the applicants, James and Allison Gozzo. Attorney Donahue stated that he had reviewed Town Counsel’s letter to them on the matter and said that the letter clearly indicated that the Commission was fully vested with the authority to grant this application. The letter also noted that the Commission needed to apply the special criteria for Special Exceptions as exists in Article Seven, Section C.10:

Joaquin Sastre, 12 Bushy Hill Road, recapped that his original opposition to the applicants’ request is that it can not be granted according to existing regulations, as it would result in a de facto spot zone and does involve a change of use in that it breaks away completely from the definition of a family business. Per the Regulations, auxiliary buildings may only be used after a public hearing or exception by the family in residence. If the property were to be split into two uses, anyone could live in the house without being related to the party operating the business. Additionally, the provisions for family businesses operated in an auxiliary building after a public hearing can have no more than one employee who is not related to the family by blood or marriage. Under the proposed change, a family could live in the house and be unrelated to the owners of the business and there would no longer be any limit as to the number of unrelated employees. He felt that such a change would be a very significant one relative to use.

He also stated that any proposed conversion of the six residences that are in the area from Bushy Hill from StreetaddressWest Street to the PlaceNameplacePowder PlaceTypeForest to commercial zoning is doubtful. He stated that Article Twelve, Section C-1 of the Regulations requires that every application that is received regarding use shall be immediately forwarded to the Zoning Commission and the Planning Commission, who will study the application and make a recommendation and this was not done. He felt that, if this procedure had been followed, then the variance never would have been granted by the Zoning Board of Appeals.

Attorney Donahue stated that he was appreciative of Mr. Sastrie’s testimony as a neighbor. However, he felt that the issue that he raised would not apply in this instance. He stated that the Zoning Board of Appeals has already made the decision to grant a variance allowing for the separation of the business use from the residential use based on hardship and Attorney Donahue stated that it is now well beyond the appeals period. Ms. Gilkey clarified with Attorney Donahue that the Special Exception was being sought in order for the applicants to be able to rent the house and continue to run the business and that there was no zone change being requested.

Chairman Barney stated that he lives at Streetaddress37 Brettonwood Drive, which is across the street from the subject property and asked if the applicant or any of the Commissioners had any problems with him sitting on this matter. No problems were expressed. Chairman Barney stated that the matter at hand is a result of Zoning Enforcement Officer Howard Beach’s zoning enforcement action taken against Sandra Flagg for various changes made to the site without a site plan approval. Ms. Flagg stated that she had installed an awning which had the name of her business on it and had no idea that this qualified as signage requiring a permit and changes made to the parking lot which were the result of the removal of diseased trees that were a hazard. Subsequent to the tree removal, the stumps were removed and the area was smoothed with gravel to provide a place for the dumpster. The Health Department then determined that the dumpster location was too close to the handicapped sign. The new graveled area is now being used for employee parking, the dumpster and a path to the dumpster.

Chariman Barney stated that, although the net effect is far more attractive than the pre-existing site, the process was more the problem and that the current application for a site plan amendment is to make the site plan and the site consistent with one another. Ms. Flagg stated that the site is actually two properties that were never merged so that the question at hand was if either lot independently had greater than 40% paved and neither does. Mr. Peck indicated the State boundary line on the site plan and it was noted that the stone raised island that was installed by the former owners approximately 11 years ago is located in the State right-of-way. Chairman Barney advised the applicant to be aware that all the items that she has out in front of the store are on the State’s land and could possibly result in these items all ending up in a State dump truck.

Chairman Barney confirmed that the lettering on the awning is within the signage square footage that is allotted to the property and that the parking lot is also compliant. Mr. Peck noted that the Design Review Board made a verbal suggestion that two islands planted with trees and lower plantings be added so as to block the view from the street at the intersection of the gravel and paved area on the northern side. Ms. Askham felt that this would impose a considerable financial burden on the applicant. Chairman Barney suggested that ornamental displays could be an option as something to break up the depth of the gravel. The applicant stated that she would not be financially able to do this in the current fiscal year, but would keep it in mind. Mr. Delehanty noted that the Design Review Board is an advisory board and that it is not a requirement.

Regarding the Gozzo application, Chairman Barney stated that he has agonized over this application all summer. He stated that the Zoning Commission’s job is that of a land use regulator and, for the long-term good of the Town, its job is to interpret the Regulations. The situation with the adjacent property is understandably upsetting to the applicant and the situation has existed for years. The Commission has tried to do everything in its power to ameliorate the problem to the degree possible with the fencing, plantings, etc. The property was zoned appropriately and the Commission did not change the zone or create the difficulty. He stated that he was unaware of any of the issues raised by the Gozzos in their letter, including the Pabich family’s plan for rezoning of Bushy Hill properties nor did he hear any reference to the rezoning in the Plan of Development. He felt that there has to be a price at which their property will sell and that would be the simplest solution to the matter. The property was originally permitted as a home occupation. Town Counsel has told the Commission that the new condition being sought must fulfill some or all of the eight requirements of Article Seven, Section C-10. He asked for the opinions of the other Commissioners. He said that, from a sympathetically human point of view, this is one of the nastier situations that the Commission has ever had to deal with, but felt that the marketplace has to be the judge as to whether the property can be sold or not.

Mr. Delehanty agreed that, in consideration of the human element, he has been going through the eight criteria and has no problem with six out of eight of them. The two areas that he had a problem with are the need for the proposed use in the proposed location and the safeguards to protect adjacent properties in the neighborhood in general from detriment. He asked Mr. Peck if the Commission would have the ability to impose a condition in the granting of the Special Exception in this instance that the property owner has to continue to operate the business. He felt that one of the reasons that you do not want to have split business use and residential use is that the business use will start detracting from the residential character of the zone. A situation where the property owner runs the business and controls the residence is less troublesome than the property owner owning the house and then renting the business out.

Mr. Peck stated that historically there have been repeated requests over the years to assign a Special Permit to the property and not the owner and the Commission has not granted those requests; the use has always been linked to the owner of the property. The Zoning Board of Appeals did grant a variance that the operator of the business did not need to occupy the residence. Chairman Barney stated that his concern was that, when you separate the residency from the business, you create a spot zoning situation and, if extended Town-wide, could create mayhem. He noted that the variable in this instance is the social circumstances under which the Gozzos are operating, but that is not within the purview of the Zoning Commission. Mr. Delehanty thought that the Special Exception here would be property specific and would not set precedent.

Chairman Barney stated that he was concerned about the references in the Gozzos’ letter to abuses pertaining to the disturbing light and noise issues and asked that the Zoning Enforcement Officer investigate this problem as the situation as described is not acceptable. Ms. Gilkey asked if she was correct in understanding that the applicant could not find a suitable commercial space for his business at this time. Mr. Peck stated that the Gozzos did try to sell the property and that it was on the market for some time and that it is currently not on the market. Mr. Peck stated that the Commission needs to find standards that apply and that, in order for a Special Exception to be granted, there must be four affirmative votes. He assured them that the noise and light issues could be investigated.

Ms. Gilkey stated that she would be in favor of approving a Special Permit with certain restrictions, not involving a number of years, but rather until certain events happen, such as the owner of the home is the person running the business with annual renewals. If either condition were to change, then the Special Permit would become null and void. This scenario would allow the applicant to move elsewhere for the sake of their children and continue to run the business until such time as a more suitable location is found for the business.

Ms. Askham stated that her head is in agreement with Chairman Barney, but her heart is telling her that the Commission must do something to solve the applicants’ problem. Chairman Barney stated that the light and noise pollution issues can and must be resolved and that neighbors adjacent to the Gozzos must be equally inconvenienced. However, the issue of the adjacent property being not as pleasant as the previous condition is not one that the Commission can control. There was no zone change and no hazard was created. When you know as a property owner that an adjacent property is zoned for business use, you must assume that at some point in time that conversion will happen.

Mr. Delehanty made a motion to approve the application of James and Allison Gozzo, Owners, for a Special Exception for business use separate from the residential use of the property pursuant to Article Seven, Section C.1 of the Simsbury Zoning Regulations on property located at 22 Bushy Hill Road. R-15 Zone, with the condition that the owner of the property shall be the party that owns and operates the business and that the Special Exception shall be personal and will not run with the land. Ms. Askham seconded the motion. The vote was three in favor, one against (Chairman Barney); however, as four votes are needed, the Special Exception was not approved.

Mr. Peck noted that the current Zoning Regulations will be made available to the Commissioners in Word format. He also stated that he had a copy of the 2005 draft of the Regulations as prepared by HMA and he also has that in Word format. Mr. Peck asked the Commissioners to provide him with prospective dates on which they would be available for public input sessions (not public hearings) relative to revisions to the regulations. Chairman Barney stated that he would be most interested in creative thought processes rather than negative or editorial feedback. Mr. Delehanty asked if the PDD revision could be delegated to its own session so that all other areas of the Regulations that need attention do not get ignored.

Chairman Barney expressed his concern over certain rulings that have been made by the Zoning Board of Appeals. Specifically, he has thought that the ruling that was given to the Gozzos was not within their purview as they are not empowered to create a zone. Secondly, he has become aware of a variance that was granted to a residential owner to lease a piece of the residential land to the new banquet facility for its sign. He also expressed his confusion as to why the banquet facility applicant stated at the time of their application to the Zoning Commission that they had no issue with the limitations of their property relative to signage visible on Route 10 and then went directly to the Zoning Board of Appeals. He felt that this action is inappropriate and unwarranted and that the Zoning Board of Appeals is not granting variances based on the Regulations’ definition of “hardship”. Ms. Askham wondered how any hardship could exist if the Zoning Commission had not denied anything in the first place. Mr. Delehanty said that it was unclear to him how the residential owner could be granted a variance when the business property had the hardship.

Mr. Peck stated that the applicant’s action was not a staff recommendation and noted that any applicant may apply, but that the issue at hand is how the Zoning Board of Appeals determines a hardship. He suggested a meeting to minimize the impact of the sign relative to its size and location. Chairman Barney stated that the longer term issue is the ZBA’s definition of what constitutes a land use hardship and that any signage issue should have been addressed as part of the site plan approval. Mr. Peck stated that he was uncertain as to whether the record shows if all other sites were explored as possibilities. He also suggested that the Commission speak with the Town Attorney relative to having a joint discussion with the ZBA about what constitutes a land use hardship. Chariman Barney thought that a seminar or presentation along those lines would be in order once the new boards are seated after the elections.