Planning Commission Minutes 02/28/2017

PLANNING COMMISSION

FEBRUARY 28, 2017

MINUTES FROM REGULAR MEETING

I.             CALL TO ORDER

Chairman William Rice opened the Regular Meeting of the Planning Commission at 7:02 p.m. in the Main Meeting Room at the Town Offices.  Also present were Jamie Rabbitt, Director of Planning and Community Development; Bob DeCrescenzo, Town Attorney; 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 filming the proceedings.

II.            ROLL CALL

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

1.            Appointment of Alternates

Due to the nature of what has transpired over the last several meetings, Chairman Rice appointed Commission Alternate Elizabeth Burt as a full member for this meeting, with Gary Lungarini remaining a Commission Alternate.

Chairman Rice made a motion to take up the New Business CGS 8-24 Referral first, amending the Agenda.

Commissioner Kulakowski seconded the motion, and it passed unanimously.

V.            NEW BUSINESS

2.            Referrals

a.            CGS 8-24 Referral to the Board of Selectmen on the proposed playscape to be constructed on the property located on the border of the Performing Arts Center property at 22 Iron Horse Boulevard (Assessor’s Map H09, Block 226, Lot 003A) and the property adjacent to the southern boundary of the same (shown on the Assessor’s Map as Map H10, Block 226, Lot 002). Zones SC-3, SC-4 and R-40.

Kevin Kowalski, Deputy Chief of the Simsbury Fire Department and Marshall of the Volunteer Fire Company, presented the playscape proposal.  He said this would be a spring kickoff to their 75th year celebration taking place in 2019; the Volunteer Fire Company would be the project funder, including installation.  He provided the Commissioners with a map showing the playscape’s location and believes it will be a neat fit for the kids; it would be placed within the existing playground fence line where 2 trees are dying.  He said there would be turf around the rubber surface, which due to cost has become their biggest challenge.  He said no taxes would be involved; they are looking at voluntary funding streams for the $21K+ Fire Truck Prop cost; and members of the Fire Company will provide free contractor installation services valued at $2K+.  He indicated the playscape is not a huge size and would be for children ages 2-6 years; it would display the same patch as on the fire truck saying “Volunteer Fire Company” for Engine 75 – they don’t want to put too much on it.  He said they officially placed the order with deposit on 02/27/2017 so the vendor could begin working on graphics.  He confirmed the Fire Company is working with Mr. Toner to fence it off assuring surrounding safety, and they are pretty excited about the project.  The Commissioners commented it was a very generous gift to the Town.  Mr. Kowalski recalled that at the Fire Company’s 50th anniversary, they donated the clock in front of Town Hall,

Commissioner Beum made a motion finding that the proposed playground equipment from the Simsbury Volunteer Fire Company at 22 Iron Horse Boulevard (Assessor’s Map H09, Block 226, Lot 003A) and the property adjacent to the southern boundary of the same (shown on the Assessor’s Map as Map H10, Block 226, Lot 002), also known as the Rotary Park Playground, is consistent with the goals and recommendations of the Town of Simsbury’s 2007 Plan of Conservation and Development.

Commissioner Needham seconded the motion, and it was passed unanimously.

III.           APPROVAL OF MINUTES of the February 14, 2017 Regular Meeting and February 23, 2017 Special Meeting

February 14, 2017 Regular Meeting:

On line 307, the word “Advocates” is added following “Bike Ped”.

On lines 340 and 341, the name “PR490” is corrected to “PA490”.

Chairman Rice made a motion to accept the February 14, 2017 Minutes, as amended.

Commissioner Needham seconded the motion, and it passed unanimously.

February 23, 2017 Special Meeting:

Commissioner Leavitt-Smith made a motion to accept the February 23, 2017 Minutes, as written.

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

IV.          OLD BUSINESS

1.            Public Hearings

a.            None

2.            Applications

a.            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 read Application #16-02 into the record noting that at the last meeting Town Staff and Counsel were requested to research certain subjects; he asked if they were prepared to discuss those items.  Mr. Rabbitt confirmed they were ready.  Attorney DeCrescenzo continued that he has worked with Mr. Rabbitt to develop verbal responses to the questions for this meeting which will be followed up in writing and provided to the Commissioners prior to the 03/14/2017 regular meeting; and requested guidance from the Commission regarding preparation of written draft motions to approve or deny because if there is an appeal the Courts require specificity for 8-30g applications.

Attorney DeCrescenzo noted there are 3 main issues before the Commission:  1) Intervenor issues; 2) site line and stopping distance matters; and 3) drainage related issues.  He continued that falling under drainage related issues is the question regarding the rational method vs. TR55 and whether or not Town regulations require applying the rational method or is discretion allowed.  Attorney DeCrescenzo noted those standards come out of the Highway Construction and Design Standards for the Town of Simsbury, which is a document adopted 11/24/1981 and revised in 01/1988 to provide applicants the standards to use when designing subdivisions and other site plans.  He said that particular standard is found in 5.2.4 Estimating Storm Runoff, in subsection b. which says for runoff determination for less than 200 acres, “it is suggested that the rational method be used in determining runoff”.  Attorney DeCrescenzo continued that the word “suggested” does not indicate a requirement, but simply a suggestion; what is important is for an industry-recognized standard to be used to estimate storm water runoff and the record indicates TR55 is an alternative industry standard that some engineers prefer over the rational method, which may be a more static method and TR55 may be a more fluid standard; testimony was also heard that the rational method is an older methodology and the TR55 methodology is a newer more precise standard – it is up to the Commission to decide which expert was more credible and which testimony in evidence should have greater weight, but he noted that under the manual language, an applicant is not required to use the rational method.  Mr. Rabbitt agreed the terminology is a suggestion to use the rational method; TR55 is the predecessor to TR20, a computer generated version of the rational method, so for larger drainage areas there are more inputs with numerous runs bringing in more complications for consideration; the rational method has been accepted for use on smaller sites.  He noted a reference in 5.1.5 of the Highway Standards regarding DOT’s drainage manual referring to DOT Form #811, revised up to #816, which does not contain terminology that the applicant is required to, or shall, will, or must, rather the language is suggested.  Attorney DeCrescenzo added it is important to note that the Town Engineer accepted the Applicant’s calculations, but had some concerns he wanted addressed about some of the conclusions drawn from the data derived from the methodology; and he did not say don’t use TR55, use the rational method; and the Town standard, as written, is flexible enough to allow using either TR55 or the rational method.  Commissioner Leavitt-Smith noted the standards have not been updated since 1988 and technology has changed in 20 years.  Attorney DeCrescenzo indicated that could be a consideration as the Commission weighs competing data, but it does not mean the 1988 update is less reliable because it hasn’t been updated.  Commissioner Kulakowski asked for clarification that the rational method is a generally-accepted engineering standard for runoff for smaller sites under 200 acres, as is TR55.  Attorney DeCrescenzo confirmed they are both accepted methodologies to estimate water runoff; the language in the Town manual suggests the rational method be used in determining runoff for sites less than 200 acres.  Commissioner Burt asked whether the Town standards mention TR55.  Mr. Rabbitt believed there is no reference to TR55 in the regulations, which were last revised in 1998 for sidewalks, pavement thickness and standards, curbing, and road width; there were no revisions to language associated with drainage calculations or methodology, which relate back to 1981, and would have referenced TR20 from that time, not TR55; the only other reference is to the DOT manual #811 which similarly looks at the rational method under 200 acres and the computer model over 200 acres.  Commissioner Leavitt-Smith recalled that the Town Engineer accepted the calculations with additional issues required to be addressed.  Mr. Rabbitt clarified that the Town Engineer did not reject the rational method calculations, but had questions about the impact associated with the resulting storm water calculated using the rational method; the Applicant responded to his comments in an attempt to address them; however, he was not aware of a letter in the record from the Town Engineer that states all of his issues associated with their drainage scheme based on the rational method have been resolved.  

Commissioner Burt asked for confirmation that the Town Engineer would be submitting further documentation to the Commission regarding these questions.  Mr. Rabbitt responded that a purpose of this meeting is to solidify  the Commission’s remaining issues, as well as additional issues and questions that need to be raised with the Town Engineer.   Mr. Rabbitt’s discussions with the Town Engineer indicate his primary concerns in writing are at the ultimate outlet to the proposed drainage scheme; they have detention internal to the project piped to an end wall on Climax Road, then underneath Climax, and then  sheet flowing to Wheeler Road’s gutter and he does not have an analysis of Wheeler Road’s capability to handle that gutter flow - so if the system fails water goes through a pipe under Climax, sheet flows through the woods, and ends up in the edge of another Town road; the Town Engineer is concerned about the sheet flow over land to the northern gutter of Wheeler Road where it could cause an icing problem during winter weather conditions, and that is if any water leaves the site from the detention basin where there is both a low-flow and a high-flow outlet.  Commissioner Burt requested that information in writing from the Town Engineer; Attorney DeCresenzo confirmed they would get something in writing.  Chairman Rice asked if the design provides for the water to end up in a Town sewer.  Mr. Rabbitt advised storm water does not end up in a Town sewer; catch basins pick up water in their proposed route and that water collected in the catch basin is piped to 2 basins, primary and secondary – that final basin has a structure in it with both a low-flow and a high-flow outlet, as well as an emergency spillway; if water leaves that final basin, it is piped roughly 500 feet northwest to a Climax Road cross culvert, leaves the pipe, lands on the ground, and is planned to flow into that pipe to the south side of Climax, and then sheet flows through the woods on the ground with no additional structure before it hits the gutter on Wheeler Road where it travels in the gutter to the next lowest point to a cross culvert that ultimately discharges under Evans.  Attorney DeCrescenzo explained there is not a structured system from the beginning of the flow to the end of the flow, there is a gap; the proposed system flows over ground down the gutter of another Town road eventually into another structured system which carries it to the receiving water course, which appears seasonal.  Mr. Rabbitt added that the receiving water course is an armored channel and there were photos of the armored channel between Wheeler and Evans in the REMA Report.  Chairman Rice asked if this Commission has purview over that activity.  Attorney DeCrescenzo confirmed that the Commission has purview over the design of storm water management systems with applicable design manual standards.  Commissioner Beum asked who owned the woods that would have the sheet flow and if that would be an issue to have water running across someone else’s property.  Attorney DeCrescenzo believed the woods were privately owned, and there is currently discharge from other storm water systems in the area of long-standing duration and there is probably no formally written recorded easement for that flow, but there are likely some form of prescriptive rights held by the Town to allow that flow to carry storm water from various systems to the ultimate receiving watercourse.  Commissioner Needham asked if the woods are designated wetlands.  Mr. Rabbitt responded the Highway Construction and Design Standards in section 1.11.1.e say that the drainage discharge has to go into an adequately-sized receiving body where water is dispersed, and also refers in section 5.2.2 to drainage easements and rights to drain (page 5.05) – the Applicant’s intent is to pipe on Climax Road to what they term is an existing receiving system, which is the cross culvert.  Mr. Rabbitt indicated the Town Attorney would discuss the result of what they propose, and whether it puts the public at risk looking at the cause and need for a quantifiable result and does that result overshadow the need for the Town to provide affordable housing under 8-30g.  Attorney DeCrescenzo noted for the 4-part test, under parts 2 and 3 “is the decision to reject the proposal necessary to protect substantial public interest in health, safety or other matters the Commission may legally consider and does such public interest clearly outweigh the need for affordable housing”.  He added cases have said that issue of “substantial public health, safety or other matters” cannot be general concerns, but requires quantifiable information of a likelihood of harm, which Counsel needs to put in writing because the applicable standards are fairly dense.  He recalled the repeated testimony by the Applicant that this is all okay with the development design providing less water leaving the site than in the current situation at peak storm; the Intervenors and neighbors raised the issue of whether the duration of that flow is longer in the proposed system; the issue for the Commission is whether there is substantial likelihood of the water flow from the site freezing on the public road/way and causing a hazardous condition as a result of the development, which issue the Town Engineer will address in his comments.  Commissioner Needham asked how such a risk would be quantified.  Attorney DeCrescenzo responded that quantifiable means X volume of water for a 25-year storm with X duration with a strong likelihood/potential for public harm; each of 10 decisions for applications over the years will have a slightly different formulation.  Attorney DeCrescenzo indicated the larger issue is whether a per se deviation from Town standards in and of itself is sufficient evidence to deny an 8-30g application with per se meaning a nominal or technical deviation from the standard; however, Courts have consistently said per se deviation from Town standards is not enough absent evidence of resulting harm, e.g. if the Town standard is 97 and the applicant comes in with 89, the Courts have looked at whether 97 is an optimal or minimal requirement - this relates to the Town standard for sight lines vs. DOT’s sight line for stopping distance; in a 1990 case, the Avon town commission rejected an application for not meeting their sight line standard, as well as for other reasons, and the Court said the deviation from the Town standard was optimal and the applicant was not required to meet an optimal standard, but to meet a minimal standard as long as public safety was protected – he noted Avon’s example is not conclusive relative to the record for this application, but it is the same topic with a similar standard that he will flesh out to provide the Commission with parameters for discussion of deviation from Town standard sight lines.  He reiterated that per se deviations are not sufficient evidence to reject an 8-30g application, it is only when those deviations can be shown through evidence in the record that they create a substantial likelihood of harm to the public.  Commissioner Burt asked about the sort of evidence in the record and what evidence the experts based their statements on.  Attorney DeCrescenzo responded that experts have told the Commission for example that for sight lines that the failure to meet the Town standard creates a substantial likelihood of harm; the experts provided testimony on the record to the Commission, which is what the Commission must consider, although the Intervenor’s traffic expert may not have said deviation from the Town standard will create a dangerous condition.  Commissioner Burt asked if other Town Staff would provide evidence to support the contention it would be dangerous to waive the Town standard.  Attorney DeCrescenzo indicated that is not in the record; the record indicates a very low incidence of accidents on this section of Climax Road with 2 traffic engineers having different opinions as to whether the DOT standard is sufficient to protect public safety or compliance with the Town standard is required to keep the intersection safe.  He found a number of cases dealing with intersection safety for 8-30g and what a Court would look for in denial of an application on that basis would be real hard tangible evidence that it is flat out dangerous; this Commission will have to make a judgement of whether that standard is met or not. 

Commissioner Beum believed there were 2 issues, not just sight line but also ingress/egress and violating the Town standard for distance between 2 roads, and presumably when 2 factors come together the Commission can give it a stronger weight than occurred in the Avon case.  Attorney DeCrescenzo responded that the 2 together and their impact could be considered to determine whether the evidence rises to substantial harm.  Mr. Rabbitt added that the Avon case is an example of a standard that was not met, yet another standard specific to sight line was; but for this application, the Town’s Highway Design Guidelines standard for sight lines is not met; they do not meet all of the DOT standards for sight lines measured at the edge of pavement with the intersecting road; and the Applicant’s expert testified sight line distance is used to evaluate efficiency with stopping distance more of a safety controlling factor, but the Intervenor’s traffic expert testified those standards are not used in isolation but in concert to avoid crashes, coupled with the lack of meeting the Town standard on separating distances between intersections – Evans and the proposed development road.  He continued that the Commission needs to consider what the Town Attorney advises for all those factors regarding the cause and effect of not meeting a standard and whether it jeopardizes public health, safety or welfare in a quantifiable form that is more likely to happen, or what is the Commission’s conclusion based on the experts testimony on the record. 

Commissioner Beum asked whether the Commission could consider looking at the future, if the concept can be considered that this particular Application could work, but several of these together could not work.  Attorney DeCrescenzo did not believe that would be valid to consider; there is no precedential effect of approving a single application.  Mr. Rabbitt added regarding public health, safety, and welfare that it would not be appropriate to say if this is built, it’s safe, but if 2 more houses are built, it’s not safe – that is an unknown, speculative outcome; the Commission has to look at what are the results and impacts for this development as it relates to public health, safety and welfare and whether that potential harm outweighs the need to supply these affordable housing units in the community.

Commissioner Needham asked about sight line discussion of snow banks and the credibility of 2 different drawings providing different data.  Attorney DeCrescenzo clarified that the drawing for the Commission to consider is the last one submitted for review.  Mr. Rabbitt explained that if there were 2 conflicting contour lines, and one was right and one wrong, the Commission could not deny the plans because of the conflict, but under 8-30g approve the plans requiring modification to correct the plan; but if the conflict on both plans was that neither had appropriate sight lines resulting in incorrect analysis of sight lines, that would potentially be grounds for denial.  Attorney DeCrescenzo added further if the required fix is not on property controlled by the Applicant, the Commission cannot approve it with the condition they do something in the end they don’t control.  Mr. Rabbitt noted regarding snow, the Applicant’s report indicated the shoulder in the Town right of way needs to be cleared of vegetation and snow to have adequate sight lines, and that can be clarified in the record based on their testimony. 

Commissioner Leavitt-Smith asked for further definition regarding the need to prove substantial harm, e.g. life and death.  Attorney DeCrescenzo clarified it could be any accident, not necessarily fatal; the Commission is not required to approve an application that is substantially likely to create an ongoing dangerous condition on a public road because it is 1) dangerous itself, and 2) puts the Town at risk; while it is easy to state the rules, the difficulty is finding evidence in the record to those rules when it comes to judgment of whether it rises to the level of sufficient evidence.  In putting together a list of cases where Courts have upheld Commissions or the Applicant, he feels there is a high bar in cases where Commission denials were upheld, e.g. inadequate water supply, unable to demonstrate ability to handle solid waste coming off the site, large scale septic systems being built on top of aquafir protection areas.  He continued that generalized comments were consistently not upheld by Courts, e.g. a project would ruin the character of a neighborhood, or there is plenty of affordable housing in this Town so this project is not needed.  Based on these cases, Attorney DeCrescenzo will provide the Commission an idea and the boundaries of what Courts looks at as a valid basis supporting denial.  Commissioner Needham commented it is a balance guided by Court decisions, but the Commission should do what it believe is right without fear it will be overturned later.  Mr. Rabbitt gave the example that a motion could be made that 19 homes are too many for the neighborhood, but that would not pass the litmus test of a challenge.  Attorney DeCrescenzo added neither would 19 homes on 4 acres are too high a density for the zone and not in keeping with neighborhood character, nor 2 net affordable homes is too little for the risk because it complies with the statute, nor were economic impacts part of the Public Hearing, and generalized comments about the economic impact of 8-30g subdivisions on the Town or neighborhood are not a valid basis unless they are backed up by hard data and there is none on the record. 

Attorney DeCrescenzo believed Staff has a good sense of what information the Commission is looking for regarding sight lines.  Chairman Rice noted that discharge of water has also been discussed.  Attorney DeCrescenzo’s case research found data that in 68% of appeals the Applicant succeeds in overturning the denial; but for 80% of regular zoning appeals, the Commission wins the appeal upholding their decision. 

Commissioner Kulakowski felt the Intervenor somewhat blurred lines between areas he was responsible for which at times made it hard to follow which side he was on and which expert was testifying in what capacity, so could the Intervenors responsibilities be defined in order to review pertinent testimony.  Attorney DeCrescenzo responded the only acceptable testimony regarding the Intervenor’s petition are those issues raised affecting environmental issues within the Commission’s jurisdiction and Staff has a list of those; it is the Intervenors burden of proof to show that the planned development is reasonably likely to unreasonably damage or harm the air, water, and other natural resources of the State of Connecticut at the proposed Simsbury project site; what Courts have said in interpreting that Statute is the only evidence admissible from the Planning Commission directly relates to its environmental jurisdiction, and the Commission does not have jurisdiction over natural habitat or endangered species and should not be considered by the Commission in evaluating whether the Applicant met the standard; Staff has identified the areas where the Commission has environmental jurisdiction related to getting water off the site and Staff will direct the Commission to evaluate the evidence presented for those issues in order to determine whether they met their burden of proof that the development is reasonably likely to unreasonably harm the water resources of the State of Connecticut, e.g. intervenors often claim runoff will pollute streams surrounding the site because road runoff contains brake pad dust, etc., but did they quantify the harm from cars, and brake dust coming from this site – it must me quantifiable harm and not just generalized statements of potential harm.  Commissioner Needham believed that should provide information on X units, weight, size, etc.  Attorney DeCrescenza confirmed that; in order to claim damage to water resources due to installation of catch basins and that water formerly percolating through the earth would now be sent channeled in concrete to somewhere untreated, the Intervenor would have to show how much suspended solids will enter the system untreated and if that amount of suspended solids ends up in that stream, what is the likelihood of potential damage based on that volume of suspended solids, e.g. a pipe coming into a stream in an environmentally sensitive area where a big box 1000-car parking lot is put in would understandably rise to the level of quantifiable harm.  He continued that the question before the Commission is did this Intervenor offer evidence quantifiable and substantially likely to cause unreasonable harm to the air, water, and natural resources of the State.  Commissioner Needham asked if runoff is only an issue for the Intervenor if it causes pollution.  Attorney DeCrescenzo clarified that it is if it causes harm to natural resources; he gave an example that there may be endangered species in the area requiring X acres for sustainable habitat and this development takes away acreage affecting those species, but that would not be enough to get to the burden of proof which has to be quantifiable, specific, and directly related to the activity.  Mr. Rabbitt noted discussion in the Intervenor’s Petition about sediment transport and erosion and the failure of sedimentation control measures to cause environmental harm, but it was not quantified.  Attorney DeCrescenzo added that it is hard to measure unreasonable unless you have something quantifiable.  Commissioner Burt asked if the Intervenor provided an historic documented example of a similar property with similar amounts of overflow into a natural channel that became silted up and whether that would have been considered evidence, and noted that people who feared their wells would become contaminated provided no evidence.  Attorney DeCrescenza confirmed that the Commission cannot guess or unreasonably predict based on supposition of generalized statements of potential harm; where are the wells, how deep are they, where did the water in those wells come from, and what level of pollution is necessary for it to percolate down through the soils, and what type of soils are between the surface and the well.  The Commissioners agreed that was not testified to and cannot be considered. 

Mr. Rabbitt noted the Commission’s request for 1) information about whether the Town previously waived the sight line standard.  He indicated based on Staff’s research they found no information that any sight line waivers were granted; therefore, they did not follow up with Police Department regarding accidents.  He continued that 2) for TR55 vs. the rational method, the Town Highway Construction  Standards allow a developer to utilize the rational method for calculating storm drainage when the size of the drainage area is less than 200 acres; and although the TR55 method is more rigorous than the rational method, it is not a required method of the regulations.  He noted a question regarding 3) affordability calculations and he re-reviewed those calculations provided by the Applicant’s consultant and found them consistent with the requirements of 8-30g.  He continued that a final question regarded 4) the percent of applicants that succeed on appeal, which information was provided by the Town Attorney.

Attorney DeCrescenzo indicated his list of questions he worked on relate to 1) Town standards and the impact of failure to meet them, which has been addressed and written information will be provided.  He continued another question was 2) what does the Commission do with conflicting strong opinions on both sides; the issue of how to weigh analysis will be talked through by the Commission regarding testimony from each expert.  He added that other questions addressed include:  3) the Intervenor process; 4) the rational method; 5) affordability; 6) weight to be given public comments will be included in the material he provides the Commission; and 7) impact of evidence of affordable housing in Simsbury was discussed. 

Commissioner Burt asked for further clarification regarding waiving the Town standard and accepting the State standard, and whether the Town could be sued by anyone injured in an accident for failure to uphold public safety.  Attorney DeCrescenzo responded that a plaintiff injured in an accident would have to show waiver of that standard and acceptance of another standard was the sole proximate cause of the injury, meaning but for acceptance of the alternative standard the accident would not have happened, which is a very, very high standard; people in car accidents sue the Towns/State frequently.  He continued that more importantly, acceptance of a standard would be a Commission discretionary act and State statute allows Towns some level of immunity for those judgments based on the evidence received as a ministerial act; the word “may” turns it into a discretionary judgment; he would not be overly concerned about potential liability to the Town based on the Commission’s reasoned judgment of what was heard for this Application,  He explained the burden to prove is on the Commission for 8-30g applications, while for a regular application the burden to prove is on the applicant that the Commission’s decision was illegal, arbitrary, or an abuse of discretion, but given a dozen applications evaluated over time using the same standards, and given no procedural issues Courts will not look behind Commission judgments, which is much easier than for 8-30g which changed all the rules.  Commissioner Beum commented that elected officials must think these are good statutes.  Attorney DeCrescenza indicated there are proposed bills to change 8-30g, but there has been no substantial change since the late ‘70’s; a famous Mt. Laurel, NJ case resulted in an affirmative plan to provide affordable housing in Mt. Laurel, and Connecticut reacted in order to not have its Courts impose affordable housing so the Legislature came up with 8-30g.  Attorney DeCrescenzo advised that internet research provides substantial information on 8-30g cases.

Chairman Rice reviewed the schedule with Staff and the need to receive their written input; there are 2 regularly scheduled meetings – 03/14/2017 and 03/28/2017.  Mr. Rabbitt and Counsel indicated a tentative meeting with the Town Engineer is scheduled for 03/06/2017 to begin solidifying and documenting responses to the Commission’s questions based on this meeting.  He asked if the Commission wishes Staff to begin formulating 4 motions - positive/negative for the Intervenor and positive/negative for the Application.  The Commissioners agreed that motions should begin to be formulated and Chairman Rice noted acceptance of the Application should be guided by 8-30g requirements and the Applicant’s successful testimony meeting those requirements; likewise, the Intervenor’s testimony must meet Statute standards; and for possibly denying the Application based on sight line issues, drainage system and potential effects, the Town standard regarding opposing roads’ proximity; stopping distance safety vs. efficiency of sight lines.  Attorney DeCrescenzo noted they have gone through the sewer process so that is off the table.  Commissioner Needham commented on the difficulty of the voting for the Application if you disagree with only 1 of 3 issues.  Mr. Rabbitt clarified Staff’s role is to help develop motion language, but the Commission will discuss the draft motion and solidify the items that need to be included or not; and for a Commissioner to vote in favor of a motion he/she must agree with all of the motion items, and if he/she is not in favor of all the items, he/she must not be in favor of the motion, and when the vote is taken he/she would state why they are not in favor of the motion and what items they did/did not support in order to clarify why the vote was made in a certain way. 

Commissioner Burt asked if a motion accepted the Intervenor’s position, would the Applicant have to satisfy specifics.  Attorney DeCrescenzo explained that was not the case, rather if the Commission found the Intervenor had not met their burden of proof that the development is reasonably likely to unreasonably harm the air, water, and natural resources, then the burden shifts to the Commission under 8-30g to investigate within the record reasonable and prudent alternatives that could be adopted to reduce the unreasonable harm.  Commissioner Burt continued that given the time limit would there be enough time to come up with alternatives.  Attorney DeCrescenzo responded the reasonable and prudent alternative would be to require the Applicant to put oil/water separators on every catch basin as a condition of approval; and the Applicant has the ability to appeal that decision.  Commissioner Burt asked about having sufficient expertise to make that evaluation.  Mr. Rabbitt added that Staff is evaluating information contained in the Intervenor status, and as they go through that information with the Town Engineer if there is merit to any claim regarding failure and/or harm they will already be proactively looking for the solution and offering the Commission a path.  Mr. Rabbitt indicated Mr. Shea’s review to date of all claims made has resulted in his recommendations being based on the record and plans submitted, including the Intervenor’s submitted information.  He continued that if there was a likelihood for the environment to be polluted by oil, the Town Engineer would have already recommended putting hooded outlets on all of the catch basins to remove floater balls from the system and act as oil/water separators, but that is not in any correspondence to date.  He continued that if there was a likelihood for erosion/sedimentation leaving the site, the Town Engineer would have recommended improving or increasing erosion defenses associated with the development, and that is not included in any of his correspondence.  He concluded that Staff are actively trying to anticipate any issues the Commission may have and indicated they would look at any specifics the Commission may have; and he believed they were well-prepared to discuss environmental harm.  Chairman Rice believed the Commissioners did not have any additional ideas and would look to Staff to come up with any reasonable alternatives, if needed. 

The Commissioners thanked Staff for their efforts.  Attorney DeCrescenzo commented that the only way to do this is to talk through this very complicated matter.  Chairman Rice asked and Mr. Rabbitt will assure tomorrow that the Intervenor’s Petition is in the Dropbox.

b.            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 and noted a Public Hearing is set to begin at the next regularly scheduled meeting on 03/14/2017.  Mr. Rabbitt indicated a likelihood the Applicant will request opening the Hearing and continuing it to a subsequent meeting because they are still working with the Conservation Commission, and he will confirm that next week.  He continued the Applicant is coming back to this Commission for a road revision; currently, there is a centered cul-de-sac and they would like to change to an offset cul-de-sac in anticipation of future development for a more refined road plan south of the brook; while the road, cul-de-sac length, and turning radiances have already been approved, any revisions to a road previously approved by the Planning Commission requires an Applicant to come back for re-approval and this is just a realignment of the road termination. 

V.            NEW BUSINESS

1.            Receipt of New Applications:

                None.

VI.          GENERAL COMMISSION BUSINESS

1.            POCD Update

Chairman Rice noted there is a joint meeting with the Zoning Commission at 6 p.m. on Thursday, 03/02/2017 in the Town Hall Main Meeting Room.  Mr. Rabbitt indicated the Zoning Commission has been provided all of the information and direct links to all of the booklets to date, and the Consultant has a summary to date of public input issues and will steer the meeting discussion; this Commission has reviewed booklets 1, 3 and 4 and will review 5, 6 and 7 in 2 weeks.  Mr. Rabbitt confirmed the meeting purpose is to gauge the Zoning Commission potentially taking on action items, and also for a general but frank discussion of terminology associated with POCD verbs given this Commission’s inclination to use stronger action verbs than were used in the 2007 POCD; and an effort to reduce 200 recommendations focused down to 100 recommendations and seek action on those 100; verbs could be changed from “implement” to “evaluate” or it may be decided not to include an item in the revised POCD, which is a 10-year document with 5 elections in that timeframe.  He continued that for the majority of items in the POCD, Zoning would be the implementer.  Mr. Rabbitt noted the Consultant wants to remain focused at the meeting on getting through booklets 5, 6 and 7 so he can begin writing the plan.  It was noted Commissioner Beum has gone through all of the booklets and provided comments; Commissioner Lungarini was invited to participate in the POCD workshop discussions.

There was no correspondence.

VII.         ADJOURNMENT

Commissioner Kulakowski made a motion to adjourn the meeting at 8:36 p.m.

Commissioner Beum seconded the motion, and it passed unanimously.