Planning Commission Minutes 02/14/2017

PLANNING COMMISSION

FEBRUARY 14, 2017

MINUTES FROM REGULAR MEETING

I.             CALL TO ORDER

Chairman William Rice opened the Regular Meeting of the Planning Commission at 7:03 p.m. in the Main Meeting Room at the Town Offices.  Also present were Jamie Rabbitt, Director of Planning and Community Development; Janis Prifti, Commission Clerk; and other interested parties.

1.            Pledge of Allegiance

Chairman Rice led attendees in the Pledge of Allegiance.  He thanked SCTV for recording the proceedings.

II.            ROLL CALL

Commission members in attendance were:  William Rice, Alan Needham, Robert Kulakowski, Erin Leavitt-Smith, and Elizabeth Burt. 

1.            Appointment of Alternates

Chairman Rice appointed Alternate Elizabeth Burt as a full member for this meeting.

Town Attorney, Bob DeCrescenzo, joined the meeting at 7:04 p.m.

III.           APPROVAL OF MINUTES of the January 24, 2017 Regular Meeting and

February 7, 2017 Special Meeting

Commissioner Holly Beum joined the meeting at 7:05 p.m.

January 24, 2017 Regular Meeting:

On line 64, the spelling of the name “Levitt-Smith” is corrected to “Leavitt-Smith”.

Commissioner Leavitt-Smith made a motion to accept the January 24, 2017 Minutes, as amended.

Chairman Rice seconded the motion, and it passed with Commissioner Kulakowski abstaining.

February 7, 2017 Special Meeting:

On lines 16, 17 and 39, the name “Ron Locandro” is corrected to “Robert Kulakowski”.

On lines 17, 18, and 19, the last sentence beginning “Chairman Rice….[through] all business.” is deleted.

Commissioner Leavitt-Smith made a motion to accept the February 7, 2017 Minutes, as amended.

Commissioner Beum seconded the motion, and it passed with Commissioner Burt abstaining.

IV.          OLD BUSINESS

1.            Public Hearings

a.            None

2.            Applications

b.            Application #16-02 of Mansour Prime Properties, LLC, Agent; Royce Palmer, Owner; for a 19-lot affordable housing subdivision under CGS 8-30g on the property located at 80 Climax Road (Assessor’s Map D20, Block 608, Lot 001). Zone R-40. (public hearing closed  01/24/2017; decision must be rendered by 03/30/2017)

Chairman Rice noted the Public Hearing was closed on 01/24/2017 for Application #16-02 for the 80 Climax Road 8-30g application; and this Commission must render a decision by 03/30/2017, which is within the 65-day time period.  He invited comments/questions from Commissioners for Town Staff/Counsel.  Attorney DeCrescenzo felt the best way to proceed would be to collect questions and then he and Staff would provide a written response for circulation among Commissioners.

Commissioner Burt asked about the difference between Town and State standards for sight line regulations.  1) She understood the Applicant’s proposal does not meet Town standards, but does meet State standards, and the Applicant is arguing State standards could/should apply and is requesting a waiver of Town standards for sight line distance.  She continued that if the Town granted that waiver and if an accident occurred, e.g. a car passing on Climax Road, a child exiting Hendrix, or a bicyclist/runner on Climax, were involved in a collision on the side not meeting Town standards, could the Town be sued for failure to apply its own safety regulations, even though insurance companies would participate in covering accidents/injuries; but could the Town be sued.   2) She also asked if there is a record of how many times that standard has been waived since it has been in existence for any kind of development.  3) She asked if those records were kept, would the Police Department have any record of accidents occurring at those locations.  Commissioner Leavitt-Smith added a related question regarding whether the Town being sued or not can be factored into the Commission’s decision for this 8-30g application.  Attorney DeCrescenzo suggested slightly rewording it as anyone can be sued, but the issue here is if sued what is the potential liability that arises from deviation from the Town standard vs. the State standard; he was not sure a waiver is involved here as much as being asked to apply a different standard; if anything is waived, under 8-30g the Applicant is saying all the standards go out the window and the test is whether the proposal under any standard meets the health, safety, welfare criteria.  Commissioner Burt felt the question on the history of waivers, would instead be how many times has the State Statute been applied.  Attorney DeCrescenzo understood the question regards potential liability that arises from applying the State standard vs. the Town standard.

Commissioner Needham asked in cases where the information given shows conflicting strong opinions on both sides, in order to determine how safe a condition is, can a Statute be used as a guideline for what is safe without sticking to every detail in the regulation, meaning the regulation is promulgated to create a safe condition without citing the regulation to be adhered to so if a standard calling for 100 is at 50, is it assumed not as safe.  He would also like to have a better understanding of the testimony regarding CTDOT stopping distance is considered a safety issue and sight lines are more an operational deficiency standard.  He also asked about the difference in interpreting regulations derived from Section 7 vs. Section 8 of the State Statute.  Attorney DeCrescenzo responded that is currently before the Court, but he can frame the issue for the Commissioners – Title 7 is the general grant of power to municipalities and in the case before the Appellate Court one party believes 8-30g waives both Title 7 and Title 8 standards, and the town party believes only Title 8 standards are waived by 8-30g.  Mr. Rabbitt explained the Brenmore case involved town ordinance vs. subdivision regulations.  Attorney DeCrescenzo explained the power to enact town ordinances comes out of Title 7 and the power to enact subdivision regulations comes out of Title 8; the town’s position was that 8-30g requires Planning/Zoning Commissions waive those standards that find their origin in Title 8 and are not required to waive those standards that find their origin in Title 7; unfortunately, that decision will likely not be issued until around Memorial Day.  He noted that Attorney Wise cited the lower court decision.  Commissioner Needham believed it was reasonable to make a decision based on what is currently known, as opposed to what might happen.  Attorney DeCrescenzo responded that the Supreme Court is now reviewing the Appellate Court Brenmore decision, which is a narrow but core 8-30g issue.  Mr. Rabbitt clarified that at the Superior Court level, the Court sided with the Applicant that the ordinance was not pertinent to the subject matter, and the Appellate Court agreed, and the town then appealed to the Superior Court and the case was argued and they are awaiting the court’s decision.  Commissioner Needham asked whether a Commissioner needs to be an expert in the subject or can best judgment be used if neither side has swayed them.  Attorney DeCrescenzo indicated that if the expert testimony heard was from a qualified expert, then it is up to the Commission to give greater weight to one expert vs. the other; in this case, a number of experts on different issues came to very different conclusions and it is up to the Commission to review that material and decide which expert to give greater weight to – that is the Commission’s job and rationale for it.  He continued that on appeal, courts look unkindly on Commissioners who do not care what any expert says; the court looks for the reasoning the Commission used in coming to its conclusions.  Commissioner Needham asked if that is allowed based on personal experience with the site leading them to believe a situation unsafe.  Attorney DeCrescenzo noted that court cases have said Commission members are allowed to use their personal experience with an area, but it would be wise to tie it back to conclusions based on expert testimony, e.g. an expert says post-development the intersection service won’t change, but you drive through there every morning and the intersection is backed up and additional traffic will result in diminution of service.  He said the courts expect Commissioners to have knowledge about their town; the threshold question is did you find experts on the issues to be qualified. 

Commissioner Needham asked about the Intervenor proceeding as a separate decision.  Attorney DeCrescenzo confirmed that is a proceeding within the proceeding and deals with the environmental issues.  He read the exact language, “The conduct which has or is reasonably likely to have the effect of unreasonably polluting, impairing or destroying the public trust, the air, water, or other natural resources of the state.”  Attorney DeCrescenzo continued the courts have said that in applying the standard of 22.A.19, the Planning Commission can apply it only in those areas where it has jurisdiction over environmental impact; Staff/Counsel will provide guidance regarding the Planning Commission’s regulatory jurisdiction.  He added that courts have said in making that determination, the Commission needs to find specific quantifiable evidence of unreasonably polluting, impairing, and destroying the public trust, the air, water, or other natural resources; it is probably not enough to rely on generalized statements about potential negative impacts.  He indicated there is no development or change to the land that could be undertaken and have zero impact on air, water, and natural resources, and under the Statute standard, is that impact reasonably likely to be unreasonable; and findings of specific quantifiable impacts in those areas of the Planning Commission’s jurisdiction are required.  Commissioner Needham asked for guidance as to what polluting means, as well as erosion and runoff.  Mr. Rabbitt clarified the erosion has to cause environmental harm that is unreasonable and has been quantified, and there is a likelihood of it occurring.  Attorney DeCrescenzo added that the Statute calls for that impact rising to the level of pollution, impairment, or destruction; Commissioners must determine whether the testimony rises to that threshold in a specific, quantifiable way as it applies to all pollution, impairment, or destruction cited by the Intervenors.  Attorney DeCrescenzo advised the Commission to first determine whether the Intervenors have met their burden under 8-30g, and if so, it is the Commission’s job to explore feasible and prudent alternatives, which will be part of Counsel’s write-up.  He said 22.A.19, the Private Attorney General Act, allows any citizen to bring an action to intervene in any proceeding to protect the air, water, and other natural resources of the State, and courts have become specific and narrow about how it applies to individual proceedings, with the Planning Commission having less environmental jurisdiction than Inland/Wetlands; the Planning Commission’s jurisdiction must be found in regulations or statutes.

Commissioner Beum followed with a question about whether consideration of the impact on well water quality of the neighbors is part of health, welfare, and safety regulations.  Attorney DeCrescenzo responded that the question is whether that is a valid consideration under the Statute regulations; and if so, what level of evidence is needed to make it part of the Commission’s consideration; people stated that if the development is built as designed, it will have a negative impact on my well.  He indicated guidance will be provided on the standard of reliable evidence; the Commission will have to weigh the two sides of testimony heard – one side that there will be no additional site runoff, and one side that of course there will be additional site runoff.

Commissioner Beum asked for more guidance regarding the rational method vs. TR55 and whether one has precedence.  She recalled Mr. Quirk’s testimony that if the rational method were not an acceptable Town standard, there would problems with runoff all over town; she noted her road was designed to Town standards and there is a problem where water runoff freezes creating a very hazardous situation and on nearby Terrys Plain going toward Tarriffville her son was in a van that slid off the road due to water this year, and also on that road in that same location at night when she was recently going to the airport the whole road was closed with many police vehicles and ambulances – she asked if the Town Engineer has reports for that corner and of any other areas and whether that is evidence that methodology has not served well.  Attorney DeCrescenzo responded it would be unwise to observe a condition elsewhere in Town and conclude that harmful condition arose from application of the rational standard as there may be many other factors involved; he will provide guidance in working through that.  Attorney DeCrescenzo indicated that information would be also obtained from the Town Engineer.

Commissioner Beum asked Staff for more explanation regarding the calculus of affordability with the affordable houses at $275K.  She continued that if the rest of the neighborhood is assessed at that level, is there a calculus by which several homes already meeting that price range are endangered by 2-3 more.  Mr. Rabbitt responded he can walk the Commissioners through the math and explained that when an 8-30g application is submitted a snapshot in time is taken; 8-30g evolves as products move in/out of sale/rent on a project, so the affordable price in 02/2017 may be different for the same unit in 2021; the affordable price is a number that moves with time and the economy and is based on median income of the area, utility costs, etc.  Attorney DeCrescenzo added the affordable units are deed restricted and other houses in the neighborhood rise and fall with the market and may be selling for $275K today but could sell for $350K in 2 years; whereas, affordable 8-30g units have to stay affordable under deed restriction.  Mr. Rabbitt indicated a change in price of affordable units can occur by an increase/decrease in median income; if there is no change in median income, the affordable price does not change; every time the affordable unit is sold, they must meet the calculation.  Attorney DeCrescenzo indicated that the financial impact of additional units in the neighborhood is something Staff/Counsel cannot comment on, but Staff/Counsel can provide an explanation of the Statute and how it works, leaving the Commission to judge its impact and whether their affordability plan meets the Statute’s requirements.  Chairman Rice recalled that the Applicant submitted 2 affordability plans.  Mr. Rabbitt clarified the original affordability plan had some minor errors, which were corrected in their subsequent submission.  Mr. Rabbitt indicated his understanding that under 8-30g the unit sales prices in this development and its effect on abutters, is not something the Commission can consider.  Commissioner Burt asked what the most recent number is of affordable housing units in Simsbury.  Attorney DeCresenzo responded that can be provided, but it is not material to this decision; Mr. Rabbitt agreed that is not something that can be considered for 8-30g and noted the Town does not meet the 10% requirement.  Commissioner Beum believed that only applied to government financed housing and found on Realtor.com that 43% of houses offered were at/below that price.  Mr. Rabbitt explained 8-30g allows an applicant to use a section of the Statute to submit an application under a different set of standards the Commission must review it under, and it is allowed when the town does not have 10% of its housing stock meeting the definition of affordability under 8-30g; it is not based on Zillow or Realtor.com, but is based on the housing stock meeting the affordability definition and is either a government subsidized or mortgaged program.  Commissioner Needham noted that the Commission’s decision does not involve the efficacy of the affordable housing, although it is of interest.  Attorney DeCrescenzo added that it is background information, but there is no question here that 8-30g applied in Simsbury when the Applicant submitted their application and under the Statute is probably not an appropriate standard to apply.  Staff/Counsel will guide the Commission on the 8-30g standards to apply, which is part of Title 8 with the Legislature deciding years ago to override municipal zoning powers to make a state-wide policy for towns falling under this criteria and setting a different set of 8-30g standards for subdivisions for Planning Commissions to consider; the Zoning Enabling Act state law grants towns the power to write subdivision regulations and State law has the authority to override that power for this purpose.  He said the Statute furthers that State policy of many years with the Legislature having determined it is in the best interests of the State.  Staff/Counsel will help the Commission understand the 8-30g Statute.  Chairman Rice asked how many 8-30g applications have been filed in the State, and the context of the rulings in the public record.  Attorney DeCrescenzo responded that number can be provided and information on the percentage of Commissions vs. Applicants that prevail on 8-30g appeal and court interpretation.  Chairman Rice asked about positive 8-30g rulings on initial applications vs. denials.  Mr. Rabbitt cautioned the Commission’s decision will be made on information contained in the public record.  Attorney DeCrescenzo noted that while courts normally give great discretion to Commissions taking action on applications under their regulations, 8-30g changes those rules with the burden shifting to the Commission on appeal; and agreed with Mr. Rabbitt that the only information that counts for this Application is what is in the record and how it is interpreted.

Attorney DeCrescenzo commented that the Public Hearing was well managed allowing all parties to have their say, and providing a very complete record; if it goes to appeal, no matter what decision is made a very diligent review was conducted, which is why he counseled letting all information come into the record.

Commissioner Burt noted about 40 residents spoke in opposition to the Applicant and asked if they could be considered experts and what weight should be given to their testimony.  Attorney DeCrescenzo responded that it depends on what they said; if what they said dealt with facts, it can be considered; neighbors can discuss generalized traffic conditions, but recently, courts have not upheld Commission decisions based on the number of people speaking.  Commissioner Burt asked if someone drives in the area every day and says someone almost hit me, but they don’t have photos, police report, witness statements, etc.  Attorney DeCrescenzo said that testimony is relevant, but the Commission must decide how much weight to give it.  Mr. Rabbitt added that when there is extra testimony regarding traffic volume, lane width, and safety associated with the travel way, a lot of effort has to be put in to the belief in those statements, e.g. as drivers when you almost had an accident, does it mean that road was not safe or there was a lapse in judgment of a party, there usually is a cause and effect and if you take away this development, will the addition of 19 homes and potentially 50 cars/day substantially change the safety of a road currently carrying a 1000 cars/day.  He noted that asking these questions potentially helps provide the answers. 

Chairman Rice indicated the next regular Commission meeting is scheduled for 02/28/2017.  Attorney DeCrescenzo planned to put together a response for that meeting to the questions posed and invited further questions once that information is provided.  The Town Engineer will also be provided applicable questions for his response.   Mr. Rabbitt noted there are 3 more meetings before the 03/30/2017 decision date.  Chairman Rice anticipated draft decision language would be developed no later than 03/28/2017.  Mr. Rabbitt agreed and commented this was a good discussion, Town Counsel and Staff now have some work to do, and he anticipated that following the 02/28/2017 regular meeting the Commission can provide some direction to Staff/Counsel to formulate the Commission’s draft decision legal language.  Attorney DeCrescenzo explained that the under 8-30g the Commission has to specifically articulate the reasons for its decision.  Chairman Rice responded that was his concern given the time constraints and there is a one meeting buffer, unless a special meeting is held.  Chairman Rice asked the Commissioners to begin reviewing the testimony contained in the box folder for 80 Climax Road; Staff will pull the pertinent sections from the Meeting Minutes from beginning to end with dates for the sections; it was confirmed that the final revised plan sheets to be reviewed for this decision were submitted 01/24/2017, and the historic record of documents submitted is also available.  Mr. Rabbitt noted there were 2 contradictory grading plans, which was clarified at the last meeting.

c.             Application #17-01 of Dorset Crossing, LLC, Owner, for the revision to the layout of the temporary cul-de-sac, resulting in the re-subdivision of the properties located at 115 Casterbridge Crossing (Assessor’s Map H04, Block 403, Lot 13A-G)  and 130 Casterbridge Crossing (Assessor’s Map H04, Block 403, Lot 13A-D). Zone PAD. (received 01/24/2017; public hearing scheduled to opened 03/14/2017)

Chairman Rice read Application #17-01 into the record noting it was received at the last meeting and a Public Hearing is scheduled to open 03/14/2017 at 7:00 p.m.  Mr. Rabbitt indicated they are still firming up the Public Hearing location, which will be confirmed in the legal notice.  Chairman Rice suggested hearing Application #17-01 before discussion of Application #16-02 and the Commissioners agreed.  Mr. Rabbitt advised that the Applicant is before the Conservation Commission and in the process of making revisions.  He indicated the location at Dorset Crossing is past the substation across a stream to a cul-de-sac which they would like to change to an offset cul-de-sac for redevelopment of that parcel on the brook south side.  Therefore, he noted some revisions are needed for road layout and culvert crossing; the Applicant originally proposed a 4’x6’ box culvert and not re-introducing the stream bed, but following discussions with the Conservation Commission they are now re-establishing the stream channel within a larger size box culvert resulting in a less substantial change in environmental conditions. 

Commissioner Beum asked about the status of another traffic relieving road.  Mr. Rabbitt responded that is currently financially constrained and would be a new connection on the north side of the existing Urgent Care facility back through the substation and all the way out to Hoskins; and there would be some financially combined responsibility for the road. 

V.            NEW BUSINESS

1.            Receipt of New Applications:

                None.

VI.          GENERAL COMMISSION BUSINESS

1.            POCD Update

a.            Schedule/status

b.            Upcoming meetings

c.             Listening Sessions

d.            Phone survey

e.            Mapping             

Chairman Rice believed the Commission would be meeting with the Consultant at this meeting to discuss the booklets he sent out.  However, Mr. Rabbitt advised the Consultant is holding a listening session with Bike Ped in attendance at Henry James this evening as indicated in the email chain provided to Commissioners.  He reviewed 2 special meeting dates discussed:  1) Thursday, 02/23/2017, which would be the most important meeting in the last 6 months regarding the POCD update; and 2) then following this Commission’s review of the POCD booklets a very important joint meeting would take place with the Zoning Commission on Thursday, 03/02/2017, because Zoning is the implementing arm for the POCD – Mr. Rabbitt will work with the two Commission Chairs to determine start time - potentially 6 p.m. - and all booklets will be Dropboxed for meeting attendees.  Mr. Rabbitt noted the Consultant can clearly articulate on behalf of this Commission the direction of the POCD and what are bigger issues.  Chairman Rice reiterated a Planning Commission Special Meeting will take place with the Consultant on 02/23/2017 where he will be provided the Commissioners comments on the booklets; the Commissioners agreed on a 7 p.m. start time with Commissioner Leavitt-Smith joining the meeting in progress; Commissioner Kulakowski cannot attend and will provide comments to Mr. Rabbitt and Chairman Rice.  Commissioner Beum was concerned about having adequate time to provide feedback, and believed the Consultant has done a great job.  Mr. Rabbitt commented that a talent of the Consultant is working through plan minutiae, building Commission consensus, and moving things along; 2 ½ hours was spent with 10 attendees at a recent listening session.  Mr. Rabbitt confirmed there is no booklet #2 distributed; the remaining booklets 1-7 have been distributed; at some point there will be a subject index.  Regarding a Glossary of Terms, Mr. Rabbitt indicated the booklets are not the Plan, but help the Consultant form the 60-100 page POCD bound plan; #2 will contain all the demographic, social, and economic tables. 

Regarding the phone survey, the Consultant shared the Commission’s concerns about how people will react and is confident in the company he uses to get responses; while it is a cold call on behalf of the Town’s Planning Commission, a message asks them to call and leave a time for a callback to obtain the respondents input; for the time being the Consultant has suggested going with the phone survey, rather than Survey Monkey and Staff deferred to his expertise.  Commissioner Beum asked about the effect of the phone survey on meeting the deadline.  Mr. Rabbitt responded that the 02/23/2017 meeting is critical to building necessary consensus allowing the Consultant to begin writing the Plan.  Chairman Rice added that it is conceptual and the Commission needs to provide good guidance for the Consultant to move forward.  Mr. Rabbitt noted the Consultant has talked about carefully picking action words used in the Plan; the Consultant’s goal is to have the Plan in draft form in 4-6 weeks in April to allow for Commission review; the phone survey will move forward and there will be Special Meetings held on 02/23/2017 and 03/02/2017. 

Commissioner Leavitt-Smith asked what PR490 Lands are.  Mr. Rabbitt responded they are programs under State Statute where someone can put their land under PR490 to reduce the assessed value, e.g. a farmer cannot afford to pay taxes on agricultural land assessed at $1 Million and may be forced to sell it; Public Act 490 allows for reduction of the tax rate on that land with a promise the farmer will keep it in 490 for a period of time, but if it is sold during that time, the farmer owes back taxes on the full assessed value with no additional penalty.

Chairman Rice asked about mapping for the POCD.  Mr. Rabbitt indicated it was a follow-up to open space mapping done a while ago, and they are looking at incorporating that mapping for open space and easements throughout the Town as part of this project as funds are available and taking it to a higher level add with Rich Sawitzky as a project manager.  Chairman Rice recalled an inventory of Town-owned open space was done by an intern; Mr. Rabbitt indicated this would be a follow up to that with the data incorporated into the Town’s GIS.

Regarding the specificity of questions for the 02/23/2017 Special Meeting, Mr. Rabbitt confirmed they can be as specific as you want, but not lengthy discussions.  He confirmed looking at a date of 11/01/2017, the Plan would have to be available on the web page 65 days in advance of the Public Hearing prior to Plan adoption, so by 09/01/2017 a final draft of the Plan needs to be up on the Web Page, and typically there are no August meetings, so the Consultant is looking at April, May, and June to make sure work is done; the Plan must also be referred to/reviewed by the BOS who recommend adoption or adoption with revisions, and that also falls within the 65-day period prior to adoption; if it were adopted 11/01/2017, given the requirement for legal notice in the newspaper, the earliest effective date would likely be 11/07/2017 noting every increment in time has an effect.  He indicated there are provisions in State Statute, as well as example letters the Office of Policy and Management (OPM) has when a Plan is not up-to date, which affect a town’s ability to get discretionary funding; however, if the Town applies for discretionary funding, a waiver can be requested and to his knowledge waiver requests have been granted; in essence if a grant were due 11/02/2017, a waiver request could be sent to OPM stating the Plan was adopted 11/01/2017 by the Planning Commission with an 11/07/2017 effective date, so the Town was out of compliance for 5 days.  He has known of community plans out of compliance for much longer periods, and it did not prevent them from applying for or receiving discretionary funds.  Chairman Rice asked if Regional Planning Commission review happened in a parallel timeframe; Mr. Rabbitt confirmed that it did and indicated they look for compliance with the regional and State plan; however, the State does not review the Plan, it is only submitted to them and reviewed when they prepare the State POCD Plan.

VII.         ADJOURNMENT

Commissioner Beum made a motion to adjourn the meeting at 8:35 p.m.

Commissioner Kulakowski seconded the motion, and it passed unanimously.