Planning Commission Minutes 03/16/2017 SPECIAL MEETING

PLANNING COMMISSION

MARCH 16, 2017

MINUTES FROM SPECIAL MEETING

I.             CALL TO ORDER

Chairman William Rice opened the Regular Meeting of the Planning Commission at 7:00 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; Michael Glidden, Assistant Town Planner; Janis Prifti, Commission Clerk; and other interested parties.

1.            Pledge of Allegiance

Commissioner Leavitt-Smith led attendees in the Pledge of Allegiance

II.            ROLL CALL

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

1.            Appointment of Alternates

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

Chairman Rice noted that due to cancellation of Tuesday’s regular meeting, this special meeting is being held due to the nature of pending Application #16-02, in order to receive input from Town Staff regarding pending questions.

III.           APPROVAL OF MINUTES of the February 28, 2017 Regular Meeting, March 2, 2017 special meeting, and March 8, 2017 special meeting

Commissioner Needham led review of the minutes as follows:

February 28, 2017 Regular Meeting:

Chairman Rice made a motion to accept the February 28, 2017 Minutes, as submitted.

Commissioner Leavitt-Smith seconded the motion, and it passed unanimously.

March 2, 2017 Special Meeting:

On line 39, the spelling of “Glen” is corrected to “Glenn”.

Commissioner Leavitt-Smith made a motion to accept the March 2, 2017 Minutes, as amended.

Chairman Rice seconded the motion, and it passed unanimously.

March 8, 2017 Special Meeting:

Commissioner Leavitt-Smith made a motion to accept the March 8, 2017 Minutes, as submitted.

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

IV.          OLD BUSINESS

1.            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 and reviewed that the Commission closed the Public Hearing and has until March 30th to render a decision.  He requested Staff input.  Mr. Rabbitt responded that the Commission has been provided:  1) a letter dated 03/16/2017 from Town Attorney DeCrescenzo; 2) a letter dated 03/10/2017 from Jeff Shea; and 3) Attachments A and B favorable and negative draft motions.  Commissioner Burt asked about the expected response from Mr. Shea regarding questions from the last meeting.  Mr. Rabbitt responded there is a site line table and the 03/10/2017 letter from Mr. Shea details a number of open-ended issues.  Attorney DeCrescenzo indicated his letter outlines/highlight what courts have said about 8-30g, Town standards, and standards of review; on page 1 he laid out the most pertinent section of the 8-30g statute regarding what has to be met and sustained in a motion to deny, which is the outer limit, while approval is another standard.  He found a 1999 Avon case that deals with the Town standard vs. the DOT standard for sight line distance; there is also a Superior Court drainage case with facts similar to this Application; the Kaufman case is a leading Supreme Court case that set rules of the road for 8-30g; and the most recent Appellate Brenmore case deals with town standards and whether a Commission can deny an 8-30g application for failure of the applicant to comply with town road width standards, etc.  Attorney DeCrescenzo tried to provide the Commissioners with a framework for how to look at the record and what to look for in the record in deliberating what decision to make; what weight to give expert testimony, which is discussed in Kaufman with Justice Peters writing  the decision saying that you can give whatever weight you want to an expert, and can discount an expert, but if you have a contrary review of an expert’s opinion you have to find support for that view in the record itself, e.g. you live near that intersection, and the expert says it’s a level b, and you think it’s a level c – Kaufman says you would have to find evidence supporting that view in the record; and that same principle applies to public testimony, which cannot just be an individual’s opinion.  Commissioner Beum asked if 4 neighbors said X happens, the Commission cannot accept that unless another external source confirms that.  Attorney DeCrescenzo indicated that if 4 neighbors said storm water runoff from this property as developed will spoil my well and there is no other expert testimony in the record, the Commission would probably not be sustained in giving the neighbors testimony full weight in the absence of other expert testimony in the record because the courts say it is overly speculative; the number of neighbor opinion testimonies is not pertinent, unless there is expert testimony confirmation on a topic that lends itself to quantifiable expert testimony.  He said as the Commission evaluates the record, greater weight should be given to areas of testimony in the record where qualified experts spoke about topics such as traffic, sight line distance, drainage, etc., which also includes the expertise of the Town Engineer, Planner, and Staff based on their knowledge, experience, and qualifications that are greater than the qualifications of lay persons.  Commissioner Needham asked if someone testified they stood on a certain reference point and saw something.  Attorney DeCrescenzo responded that if you had that observation and it confirmed the testimony of an expert, then that is how your observation is relevant to decision making.  He read from page 6 of his memo that Judge Peters in the Kaufman case says, “Our Supreme Court places the burden on the Commission to cite competent evidence in the record to support a rejection of expert testimony.  Although the Commission would have been entitled to deny the application because it did not believe the expert testimony, the Commission had the burden of showing evidence in the record to support its decision not to believe the experts, i.e. evidence which undermined either their credibility or their ultimate conclusions.”  Commissioner Beum noted that goes back to page 1 of Attorney DeCrescenzo’s memo stating the general statute that, “the Commission shall also have the burden to prove based upon the evidence in the record.”  Attorney DeCrescenzo confirmed that is correct and the way to prove it is to cite evidence in the record; and he acknowledged there are competing views on many topics central to the Commissions discussion.  Commissioner Burt asked the question about what is quantifiable noting the Town Engineer does not provide many numbers, but refers to items as not sufficient.  Attorney DeCrescenzo discussed how to interpret “quantifiable” and in reading the cases believed in many cases it is more toward the definition of can be quantified, rather than has been quantified, e.g. if an 8-30g application were rejected because you thought it would destroy the neighborhood’s character – that is not quantifiable; however, if the application were rejected because you believe the roadway will become unsafe if the intersection is built as proposed, that is in the nature of a quantifiable harm with X cars on the road before development and  Y accidents and a change to X cars and Y accidents after development.  He added that the courts have recently held 8-30g applications to a very high standard and the denials upheld have dealt with damage to an aquifer, inability to remove sewage from a property, inadequate water supply, and real core health and safety issues; the majority of 8-30g denials that are overturned are based on less quantifiable issues.  He felt the Avon case is a good example because Avon denying the application was overturned by the court because the town relied on the town standard for sight lines, rather than the DOT standard, which the application met; the court said in an 8-30g context the town standard was optimal and the DOT standard was the minimal standard and by meeting that minimal standard the applicant met the standard for 8-30g; and while those facts do not apply perfectly here, it provides an idea of how the court will view a denial based on that type of issue.  Attorney DeCrescenzo added that a per se violation of the town standard is not sufficient to support denial of an 8-30g application; if it is a nominal deviation from the standard without additional proof that nominal deviation creates a condition that is likely and probable to produce harm to public health and safety, the deviation alone is not enough but further requires that it is probable that deviation will create an unsafe condition for public health and safety.  Commissioner Needham asked if a measurement was taken under one weather circumstance and under another weather circumstance you know it will not apply, does that require an expert or just what you see.  Attorney DeCrescenzo responded it would require an expert for something like percolation through soils for a drainage report.  Commissioner Needham followed up if it is just what you see.  Attorney DeCresenzo responded if water is overrunning a road where the drainage system failed and freezes in winter creating unsafe driving conditions, an expert is not required to confirm it creates an unsafe driving condition.  Commissioner Needham added what if an expert reviewed conditions in July, but in December it was different.  Attorney DeCresenzo indicated that would go to evaluating the expert’s credibility, given the conclusion the expert drew was limited to a certain time of year when based on common knowledge and experience that it was a seasonal condition and not a permanent condition, and the Commission would give that expert’s testimony less weight based on the expert’s assumptions made in reaching that conclusion. 

Regarding the Town Engineer’s memo, Commissioner Leavitt-Smith asked on page 2, #4 about his statement that, “infiltration data provided by the Intervenor and percolation rates developed by the Applicant are not sufficient to accurately model the length of time….”  Mr. Rabbitt responded #4 needs to be read in concert with #3 talking about test pit and soil data included in the Application and based on review of that data and looking at the proposed design neither the Applicant nor Intervenor supplied sufficient data.  Attorney DeCrescenzo added that brings up another point that under 8-30g if an application were denied, the Applicant has a right under the statute to modify the Application to address the reasons for denial and bring it back to the Commission under the existing Application and show how it addresses issues raised by the Commission in its motion to deny, providing the Applicant a second bite at the apple.   He explained that in a motion to approve, conditions of approval could be required to address issues deficient in the Application with the Applicant needing to amend their submittal to address those issues; and if they did not do that, then they would not be able to obtain a building permit to proceed.  He noted Mr. Rabbitt’s draft motions lay all that out in detail.

Chairman Rice asked Mr. Rabbitt to step the Commission through his comprehensive sight line analysis; Attorney DeCrescenzo noted that is the first attachment to his letter.  Mr. Rabbitt confirmed he prepared the analysis at the Commission’s request in table format with 3 sheets reflecting State and Town standards.  He began with page 3 for Town sight line standards on sheets P5, P6, P7, and P8 with the left column providing intersection sight distance looking right or left; the Town standard is 475 feet measured 20 feet off pavement edge:  1) on P5 the Applicant showed measuring 20 feet from pavement edge looking right 475 feet, which meets the Town standard, and looking left they measured 13 feet from pavement edge 475 feet, which does not meet the Town standard because they measured 13 feet from pavement edge, not 20 feet; 2) P6 intersection sight distance looking right showed measuring 15 feet from pavement edge and 15 feet from the edge of the new proposed travel lane, which was depicted on plans as an 11-foot travel lane with a 5-foot bike lane shows 500 feet, but it does not meet the Town standard because it was not measured from 20 feet and the same looking left; these primarily deal with the fact they were not measured from edge of pavement 20 feet to property interior.  Attorney DeCrescenzo explained the Commission needs to determine whether the 20-foot standard is an optimal or minimal standard.  Mr. Rabbitt commented that although the plans show line striping, there is file correspondence showing the Police Chief and Director of Public Works advise against restriping Climax Road.  Commissioner Needham asked if the order of the sheets reflected the order of the plans submitted.  Mr. Rabbitt explained that each sheet shows a different attempt by the Applicant to show sight lines – P5 shows measurements at one location, P6 shows sight lines measuring in a different manner, P7 primarily measures 15 feet from pavement edge looking left to a low spot in the road with 350 feet of sight line, but they did not look right on P7.  He indicated ISD is Intersection Sight Distance.  Commissioner Needham asked for P6’s measurement from a line whether it shows how it would be constructed.  Mr. Rabbitt responded in all of these instances they would be re-grading the shoulder of Climax Road for the sight line.  Commissioner Needham thought he heard the Applicant withdraw the proposed striping of Climax Road.  Mr. Rabbitt confirmed it is still on the plans, although Public Works and the Police Chief have advised against it.  Commissioner Burt asked if an Applicant could unilaterally change a public road.  Mr. Rabbitt noted his understanding that any attempt to modify a public town roadway is under the jurisdiction of the Town Police Chief and Director of Public Works and the associated municipal permitting process, and it is all part of the record.  Attorney DeCrescenzo indicated if the Planning Commission approved the plan and the Applicant were unable to get a building permit because the Director of Public Works refused to allow a line to be drawn on a public road, that would be an issue for court review regarding whether the necessity to protect the public health and safety outweighs the need for affordable housing; that is the core issue in Brenmore currently before the Supreme Court – whether a non-title 8 official operating under title 7 and in charge of public roads can defeat the purpose of  the Title 8-30g subdivision application process.

Commissioner Needham noted that one condition of approval would mention which drawing is referenced and asked if reference to fencing in some of the detention basins agreed to by the Applicant would be another condition of approval.  Attorney DeCrescenzo confirmed it could be an additional condition of approval given a concern of the Town Engineer regarding failure of detention basins to quickly dry out which could create a safety condition for small children and people drowning in a pool of water; he indicated it is fairly typical to fence in detention basins; Commissioner Needham wanted to assure its inclusion. 

Commissioner Beum recalled a statement that sight lines were less of an issue than stopping distance.  Mr. Rabbitt confirmed that was asserted by the Applicant’s expert, not Staff.   Commissioner Beum noted in the Avon case sight lines met the DOT standard, but not the town standard; however, there are several traffic issues here, including separation distance between the proposed road and Evans Road.  Attorney DeCrescenzo clarified there are 3 deviations where the Applicant has not met the standard, including drainage, sight line distance standards, and separation distance between intersections.  Commissioner Beum asked if having two or more things not meeting standards can be a consideration.  Mr. Rabbitt responded they could be viewed independently as well as together, which is a decision the Commission must make based on evidence in the record.  Attorney DeCrescenzo confirmed that the issue is whether it harms public health and safety.  Commissioner Beum asked if there is an amplification of a condition when two visibility standards are not being met and there is no other applicable standard.  Attorney DeCrescenzo responded that a member of the Commission could reasonably conclude that the combination of those two deviations from the standard could exacerbate or make the potential harm even worse; and given that finding, it creates the probability of harm to the public health and safety.   Mr. Rabbitt added that the table of State standards and P5, P6, P7, and P8 address looking right/left and whether the Applicant met the State standard; the first table includes both which he felt might be confusing unless he separated them.  Commissioner Burt noted in comparing two standards that neither the State or Town standards are satisfied.  Attorney DeCrescenzo noted that P6 shows the Applicant demonstrating a methodology to meet the State standard by striping the road, which the Police Chief and Director of Public Works are opposed to on the record.  Commissioner Burt commented that it seems logical that by not meeting State or Town safety standards, that not following those standards endangers public safety.  Attorney DeCrescenzo responded that could be stated based on evidence in the record, but the next step would be to state evidence on the record that failure to meet those standards creates a probability of harm to public health and safety.  Chairman Rice asked Commissioner Burt if she was making a distinction whether one standard was more stringent than the other.  Commissioner Burt believed the Town standard was more stringent requiring a greater distance.  Attorney DeCrescenzo noted the Town measures 20 feet from pavement edge with a 475 foot sight line, and the DOT measures 15 feet from pavement edge; Mr. Rabbitt confirmed the Town standard is 20 feet from pavement edge with a 475-foot sight line and the State standard is measured 15 feet from pavement edge based on speed at the 85th percentile, which analysis was provided and correlated to 525 feet looking right and 500 feet looking left; and there is not a direct comparison between the State and Town standards.  Attorney DeCrescenzo added in the Avon case the court cited the absence of evidence in the record that the minimal standard would create a probability of public harm, and the minimal standard is good enough for 8-30g when you balance the need for affordable housing; also in the Avon case, the Town Engineer and the applicant’s engineer both agreed that meeting the State standard was safe.  However, Commissioner Beum noted that for this Application neither the Town nor State standard is met.  Mr. Rabbitt noted the intersection sight distance is not met for the Town or State and the default was that the Applicant put stopping distance before the Commission.  Commissioner Needham asked if the default would be to disagree with the conclusions from these experts.  Attorney DeCrescenzo noted the Applicant’s expert said pay no attention to the sight line standard because what matters is the stopping distance, which is the measurement of what is safe/unsafe and the Commission would decide whether to put greater weight on that.  Commissioner Needham gave the example if an expert says a house is visible on a foggy day and you go there and find it was not visible on a foggy day, is an expert needed to back that up.  Attorney DeCrescenzo responded that visibility is somewhat subjective.  Commissioner Beum asked for clarification regarding the issues of sight lines and stopping distance and whether they are specified by the Town and State.  Mr. Rabbitt responded there are recommended guidelines for stopping distance in the Town manual.  Attorney DeCrescenzo recalled that was a measurement that the Applicant’s expert brought into the discussion.  Commissioner Beum asked if there are stopping distance recommendations in the DOT Highway Manual; Mr. Rabbitt confirmed there were; and Commissioner Beum understood that was based on speed; Mr. Rabbitt confirmed that.  Commissioner Beum continued that sight line distances are not met; Mr. Rabbitt confirmed that; Commissioner Beum asked if there is any manual that says one is more important than the other; Mr. Rabbitt recalled that testimony was received from one expert that although the Applicant does not meet sight line distance, they meet stopping distance as the fallback standard and believe the intersection is still safe; Attorney DeCrescenzo added their expert testified the stopping distance was adequate to satisfy the minimal safety standards for 8-30g and that is what the Commission should be looking at with regard to accidents; Mr. Rabbitt added that a rebuttal expert said stopping distance is not the only controlling factor in intersection safety, that sight line distance is.  Commissioner Beum wanted to understand what the conflicting experts said vs. what standards actually state.  Attorney DeCrescenzo indicated both experts were qualified and capable of giving expert advice to the Commission and the Commission must decide credibility and weight to their statements.  Commissioner Beum asked if the stopping distance referred to vehicles on Climax Road or Hendrix Cottage Lane.  Mr. Rabbitt responded it is if someone stopped at Hendrix began to move, that someone traveling on Climax could stop in time suddenly to avoid a collision.  It was Attorney DeCrescenzo’s view that the Applicant’s expert told the Commission it is concerned with the issue of  public health and safety and regarding intersection safety to avoid collisions between cars traveling on Climax and cars entering/exiting Hendrix, it is stopping distance that is most important, not sight line distance; however, the other expert said that is not necessarily true and that sight line distance is a measurement of whether an intersection is safe because you cannot always count on people being in the prescribed stopping distance so sight line matters most; and it is up to the Commission to decide which expert has more weight.  Mr. Rabbitt added an important aspect of sight line is if you are sitting at a stop sign you want to be able to look left and right in order to determine when to pull out; the reverse would be a driver pulling out with a limited sight line where the only way to avoid a collision would be for the approaching car to stop - all within a shorter timeframe.

Commissioner Needham read that the Town Engineer’s 12/09/2016 report on page 3, #8 said that, “Both of the proposed emergency spillways direct water into the roadway.”, and he asked which road that is.  Town Staff believed it was Evans; Commissioner Beum read from last week’s meeting notes that, “sheet flowing to Wheeler Road’s gutter…we do not have an analysis of Wheeler Road’s capability to handle that gutter flow.”  Attorney DeCrescenzo indicated the Commission should consider the Town Engineer’s latest report of 03/10/2017, which responds to the latest version of the Applicant’s revised plans. 

Commissioner Leavitt-Smith asked for clarification of the timeframe to vote on a decision.  Staff responded the statutory timeframe in which to vote ends on 03/30/2017; and Chairman Rice confirmed the next regularly scheduled Commission meeting will be on 03/28/2017.  Attorney DeCrescenzo advised the Commissioners to send their questions to Mr. Rabbitt who will direct them to him and/or Staff, as appropriate.  Chairman Rice noted that the Intervenors application needs to be ruled on; Attorney DeCrescenzo advised that should be done first and noted he previously provided input to the Commission regarding making a determination of the level of evidence in the record of environmental harm and whether it rose to the level of quantifiable harm.  Mr. Rabbitt added that the favorable draft motion includes some items regarding erosion and sedimentation control and some financial surety, which aspects Staff continues refining internally with 2-3 items involving those subjects; and information on those will be sent to the Commissioners prior to the next meeting.

Chairman Rice suggested the Commission move on to read and consider the draft motions; the draft motion to approve was considered first.  Chairman Rice commented to Mr. Rabbitt 1) to be careful that the introductory first paragraph reference the Application number so that both motions are consistent; Mr. Rabbitt indicated the descriptive front language in the motion to deny will be included in both motions.  2)  Chairman Rice asked if the Affordability Plan in the record is dated February 2016; Mr. Rabbitt indicated the revised plan still contains a mathematical mistake resulting in a different loan amount, which relates to a different down payment and sales price, which is less than shown in the plan.  Chairman Rice asked if the February 2016 was the most recent plan as it references 22 units and the Affordability Plan should be updated to reflect the actual number of 19 proposed units; Mr. Rabbitt responded that instead of going into detail on those items, unless the Commission requests they do so, that they have simply stated that the plan needs to be updated to reflect the requirements of 8-30g.  Chairman Rice indicated the Staff math comment is relevant to pricing and the Commission would like it expanded a little.  Mr. Rabbitt will check on whether there is an updated Affordability Plan; the initial plan submitted with the Application contained mathematical errors with a change in median income in a second Affordability submission and he will look at that 2nd report.  Chairman Rice clarified his comments relate to the February 2016 submission and will withdraw his comments, if appropriate.

3)  Chairman Rice understood that CGS 8-30g promotes and provides affordable housing for Connecticut citizens and the statute says that, “not less than 30% of the dwelling units shall be conveyed by deed, etc.” and he felt that was a minimum number and requested the Commission give thought to a higher percentage of affordable homes.  Mr. Rabbitt indicated 8-30g allows an Applicant to apply to the Commission under that provision of the statute so long as they meet and submit an affordability plan, which requires them to submit 30% of their units as the minimum standard they are required to achieve, not 31%, 32%, or 33%, etc., and he was not aware of any case where a Commission made a motion to approve and require more under 8-30g.  Attorney DeCrescenzo stated differently that without the Applicant’s consent, if the Commission denied an application because the applicant refused to provide, e.g. 35%, the denial would likely be overturned by the Superior Court.  Chairman Rice understood that in a motion to approve, if 30% is achieved than the application meets the minimum standard, and the Commission does not have the authority to require more without the applicant’s consent, but he wanted to put that on the table for discussion.  Mr. Rabbitt added that the requirement of the 30% is that half goes to 80% of the median income and the other half to 60% of median income.

4) Chairman Rice referred to the February 2016 Affordability Plan commenting that it seemed odd that pro rata construction of the dwelling units leans toward the market rate, although it is understood there are more market rate units than affordable units, but to provide affordable housing per the statute he suggested the pro rata buildout be amended, such that the first units considered would be three market rate units, followed by two 80% median income units, followed by two 60% median income units, then cycling back to five  market rate units, followed by one 80% median income unit, followed by one 60% median income unit, at which point the affordable housing aspect would be achieved, with the remaining 5 of 19 units priced at market rate as the last to be built.  He noted that 30% of the 19 units would provide a total of 6 affordable units and his concern was with unit pricing.   Commissioner Beum asked about experience where approval for plans was granted with a developer never finishing all the units and cherry picking ones they wanted to develop resulting in the town not getting what it approved.  Mr. Rabbitt responded as a Planner that he was only aware of equitable proportionality that as units are built the proportion associated with the overall development is released, e.g. 3:1, 3:1, 3:1 doing an 80 and then a 60, etc.; he was not aware of any scenario where a municipality through different actions than those proposed by the applicant, changed that standard of proportionality, but Staff can check that.  Attorney DeCrescenzo commented the purpose of 8-30g is to create affordable housing opportunity front loading it as much as possible.  Chairman Rice did not suggest all affordable units be built first and was sensitive to the Applicant’s economic issues.  Mr. Rabbitt indicated controls include the flow of building permits issued and certificates of occupancy (COO) issued so there is not the potential error of selling all market rate units with the developer not completing the affordable units.   Chairman Rice noted part of the statute the Applicant has to complete is pro rata construction; Attorney DeCrescenzo indicated they could look at that as well.  Commissioner Needham asked if there is a timeframe where they build 3 market rate homes and then wait 2 years to build affordable units.  Mr. Rabbitt responded they could not do that with the developer required to build them and achieve a COO; however, you cannot make the developer sell them because in some instances market conditions and economics of a buyer’s ability to buy market rates can be challenging, but as long as they are built with a COO, they are available and have to be offered at that rate, e.g. the developer builds 3 units, 2 market rate, 1 affordable all with COOs, they are put on the market and 2 market rates sell and the affordable unit doesn’t, but the Commission cannot prevent the developer moving forward to the next batch of units – it is based on building and COOs, not sales, because some developers struggle with the 60th percentile either in the rent or for sale structure and the Commission should not prohibit the builder from the opportunity to build his project and provide his units under 8-30g to the public, as buyers do have to qualify; the Commission should not prohibit the builder moving forward on the property as long as they are moving in the pro-rated manner.  Mr. Rabbit asked Chairman Rice to provide his written comments.

Commissioner Needham asked about #6 and who administers the project for the Town.  Mr. Rabbitt responded that part of the Affordability Plan as the project moves forward requires the Applicant to identify an individual from a company/agency, and the Town department must be notified of the name at the time of sale to the Planning Commission; Attorney DeCrescenzo added the Town representative would be the head of the Planning Department; Mr. Rabbitt indicated they would assure the numbers are balanced.  Commissioner Beum asked under 8-30g if every time a deed restricted home is sold, the Planning Commission reviews each one.  Mr. Rabbitt clarified the affordable deeds are flagged and go through a title search, but if a cash sale were done, it could slip through the process; however, buying for a higher price, does not mean they can resell it higher because there are checks/balances in the process.  Chairman Rice read from the 8-30g statute that the person/entity designated to administer the affordability aspect “shall be identified with the application”. Mr. Rabbitt believed the Application identified Mansour Prime Properties for the affordable houses and will double-check.  Chairman Rice indicated it had not been done on the paperwork and requested the affordable housing administrator be identified in order to be strictly in compliance with the statute; Attorney DeCrescenzo commented that could be a condition of approval.   Commissioner Burt noted someone polices future resales with a title search done through the bank issuing the mortgage and asked if the bank would be responsible to report to the Town.  Mr. Rabbitt responded that affordable unit purchasers are vetted by a group/individual and qualify under the income purview, and when they apply for a mortgage the bank loan is associated with restrictions which affect that unit’s market price, e.g. if the unit is market restricted affordable and the sales price cannot exceed $200k, the bank should not be providing a $300K loan, and the restricted property should not be on the market for $350K, because the bank would be upside down on the loan for a restricted 200K property; so checks and balances between buyer, seller, and bank usually are vetted during the sale process.  Attorney DeCrescenzo indicated the bank is not likely to go to closing once they are alerted it is deed restricted and will want to assure the deed covenants are satisfied, including sales price because the loan to value ratio changes dramatically if they loan $300K for a house that can only be sold for $200K.  Mr. Rabbitt added that the affordable home should not be sold to someone making over $200K/year when the median income is $85K, so there should also be income verification in their application.  Mr. Rabbitt indicated all of this would be turned over to an entity in the State who have found a niche handling vetting/ prequalifying buyers/renters of affordable housing.

Chairman Rice noted the Commissioners should review this material and provide comments only to Mr. Rabbitt, preferably before the next meeting.  Mr. Rabbitt planned to vet the comments received with Counsel, including the Affordability Plan clearly identifying in a new submission who the administrative entity in charge is, which can easily be added by the March 28th meeting. 

Commissioner Burt noted in #9 “the Applicant shall provide evidence that they have adequate right to drain through private properties downstream”, which sounds like neighbors, most of whom are opposed to this project; she asked if they have to get the right from the neighbors.  Attorney DeCrescenzo responded that addresses a specific comment from the Town Engineer regarding a drainage swale  currently carrying storm water and the issue is whether this new system has the right to take advantage of that current swale which is part of the Town’s existing storm water system.  Chairman Rice asked how that adequate right would be demonstrated.  Attorney DeCrescenzo responded that the adequacy of the right would probably be demonstrated by the amount of flow – presumably there is flow through that swale today, and does the change in the flow require additional easement rights or is it within existing easement rights, which are probably rights by prescription, or does it overburden the easement to the extent that adjoining property owners need to consent to the overburden.  He continued that has been addressed in the record and believed the Applicant’s position is that no new easement rights are needed because there is no additional flow; this addresses a statement by the Applicant’s Counsel that is the case.

Chairman Rice reiterated the request to submit written comments to Mr. Rabbit with further discussion on March 28th.  Commissioner Leavitt-Smith asked about a requirement in the material that the Commission hold a meeting with Town Staff; Mr. Rabbitt clarified that is not a requirement for the Commission, but is instead a pre-construction meeting held by Staff.

Chairman Rice asked the Commissioners to review the draft motion to deny.  Commissioner Leavitt-Smith noted in #4 the need again to identify the affordability administrative entity; Chairman Rice will submit that in his comments.  Commissioner Beum asked regarding icing on Wheeler Road whether more specific language is required and believed it should be mentioned as courts are looking for specific hazards; Attorney DeCrescenzo responded the Commission can direct it be added to the draft.  Commissioner Beum continued that a new #4 be added with supporting evidence, so that between existing #3 and #4 that it state reasons 1, 2 and 3 dealing with visibility issues, but the fact that all 3 conditions are concurrently not met and the combined lack of visibility exacerbates visibility and consequent stopping distance creates a probability of danger.  Attorney DeCrescenzo responded it creates a good point that a member of the Commission could reasonably conclude that the combination of those 3 deviations from the standard could exacerbate or make the potential harm even worse; and given that finding, it creates the probability of harm to the public health and safety. 

Commissioner Needham referred to #1 language about what could be in the shoulder, e.g. vegetation, snow, etc. and asked if temporary obstructions like recycle bins, sale signs, political signs, etc. should be added.  Attorney DeCrescenzo responded that would be true of any condition.  Commissioner Needham felt it could have a greater effect in some intersections.  Mr. Rabbitt’s experience in evaluating sight line conditions was that sight lines are not impacted by items that are conjecture in nature and are small common obstructions within a sight line profile, unless someone installed a fence 6-feet tall x 20-feet long between the property line to pavement edge.  Commissioner Needham believed a recycle bin is more restrictive in some locations than others.  Mr. Rabbitt noted that standards developed for sight line profiles 20 feet back allow the opportunity to view sight lines, although DOT in some instances allows a telephone pole or tree to be in the sight line as a minimal obstruction to the larger entire sight line.  Commissioner Beum recalled Mr. Rabbitt’s statement regarding the inter-relatedness of the driver deciding whether to pull out based on sight lines, and if it is not a good decision it also affects the criticality of stopping distance, which is further support for the combination of issues amplifying danger; Attorney DeCrescenzo understood the point.  Commissioner Burt commented that in providing affordable housing those people should be provided a safe environment, and not following safety regulations does not do those people a favor by providing affordable housing in an unsafe area; Attorney DeCrescenzo understood that argument.  Commissioner Burt noted on page 3, B.2. the words “limited to” were missing in the sentence, “consistency with proposed density to protect valuable natural resources, including but not [limited to] wetlands and water courses.”  Commissioner Beum noted on page 2, #10 a period should be replaced by a comma, “Although the Applicant added a drywell …. from the outlet structure[,] performance of the drywell depends on the surrounding and underlying soils.”

Chairman Rice instructed the Commissioners to review testimony, review Attorney DeCrescenzo’s extensive package, re-read the draft motions, and email comments to Mr. Rabbitt as early as possible so they may be offered for discussion at the 03/28/2017 meeting.  Attorney DeCrescenzo encouraged the Commissioners to ask as many questions as possible to assure clarity given the complicated issues; and he will be present at the 03/28/2017 meeting where it is anticipated the Commission will vote.  Chairman Rice asked administratively if the Commission asks for revisions and is in agreement on the motion voted on 03/28/2017 if the amended motion can be voted on with Staff then preparing it properly; Mr. Rabbitt planned to bring a laptop to that meeting to revise the motion, as required.  It was confirmed a quorum of five Commissioners will be present to vote on 03/28/2017.

V.            GENERAL COMMISSION BUSINESS

1.            POCD Update

Mr. Rabbitt reported that the consultant is in the writing process with the random survey completed a week ago which is being tabulated.  He thanked the Commissioners for their efforts and participation in the process.  The Commissioners commented they enjoyed the joint meeting with the Zoning Commission and felt future annual meetings would be beneficial.  Mr. Rabbitt indicated as the consultant progresses, and probably by April the Commission may be able to dedicate meetings to the POCD.  The Commissioners noted their planned attendance at the upcoming annual educational seminar.

There was no correspondence.

VII.         ADJOURNMENT

Commissioner Leavitt-Smith made a motion to adjourn the meeting at 8:50 p.m.

Commissioner Needham seconded the motion, and it passed unanimously.