Planning Commission Minutes 03/28/2017

Meeting date: 
Tuesday, March 28, 2017

PLANNING COMMISSION

MARCH 28, 2017

MINUTES FROM REGULAR MEETING - SUBJECT TO VOTE OF APPROVAL

 

 

I.             CALL TO ORDER

 

Chairman William Rice welcomed attendees and 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 Beum led attendees in the Pledge of Allegiance

 

 

II.            ROLL CALL

 

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

 

1.            Appointment of Alternates

Chairman Rice indicated four regular Commission members were present and appointed Alternate Elizabeth Burt, who is familiar with the issues, to regular member status for this meeting; he also appointed Alternate Gary Lungarini, who will not vote on any decision matter he is not familiar with, also to regular member status for this meeting.

 

 

III.           APPROVAL OF MINUTES of the March 16, 2017 Special Meeting

 

On line 8, the word “Regular” is corrected to “Special”.

 

Chairman Rice made a motion to accept the March 16, 2017 Minutes, as amended.

 

Commissioner Needham seconded the motion, and it passed with Commissioner Lungarini abstaining.

 

 

IV.          OLD BUSINESS

1.            Public Hearings

a.            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. (public hearing to open 03/28/2017)

 

Chairman Rice read Application #17-01 into the record.  Mr. Rabbitt advised that correspondence was received from the Applicant requesting the Hearing be opened and tabled as they are still working with the Conservation Commission, which has not yet acted so this Commission has not received the report required by State statute that would then allow it to act.

 

Commissioner Beum made a motion to continue Application #17-01 to 04/11/2017 at 7:00 p.m. in the Town Hall Main Meeting Room.

 

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

 

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 and noted a decision is required by Thursday with no further regularly scheduled meetings before Thursday, 03/30/2017; therefore, action is anticipated to be taken at this meeting.  Mr. Rabbitt reviewed administrative items:  1) that between the previous Commission meeting and this meeting, correspondence was received from the Applicant’s legal counsel via email, printed, sealed in an envelope, stapled closed, and added to the file in an envelope labeled “Received after the close of the Public Hearing”; 2) that provided for this meeting are:  a proposed draft motion to approve, revised 03/28/2017; a proposed draft motion to deny, revised 03/28/2017; and correspondence from legal counsel in the form of a draft resolution for approval on 22a-19 petition, one in a favorable manner and one in a negative manner.

 

Town Staff confirmed it would be appropriate to handle the Intervenor Petition first.  Attorney  DeCrescenzo reviewed for both draft motions that the exhibit references the Petitioner’s Petition dated 11/18/2016 for the Application for Intervenor Status, which is in the record and cites 5 specific reasons or resources the Petitioner believes will be unreasonably polluted, impaired, or destroyed in the public trust; this is an attachment to the resolution and as the Commission goes through Intervenor status will need to address each of the 5 issues and determine, based on the evidence and testimony heard, whether or not the Intervenor met his burden of proof that the subdivision application, if approved, is reasonably likely to result in unreasonable impairment, destruction, or pollution of the public trust in the air, water, or natural resources  of the State.  He continued that the resolutions provided either approve or deny the Petition. 

 

Attorney DeCrescenzo explained for each of the 5 areas cited by the Petitioner this Commission must first determine whether or not it has jurisdiction over that natural resource; the Planning Commission’s jurisdiction is defined under 22a-19, and if it does not have jurisdiction the Commission cannot expand its jurisdiction to make a determination into areas not within its purview; if the Commission does have jurisdiction, the Commission must determine whether the Petitioner met the burden of proof; he noted the draft motions refer to each of the 5 areas.   He reminded the Commissioners that the standard is “reasonably likely to unreasonably impair, pollute, or destroy the air, water, or other natural resources of the State.”  Chairman Rice recalled that substantial discussion has taken place regarding the Commission’s purview relative to Intervenor testimony.  Town Staff provided the Commissioners with an additional copy of the 11/18/2016 Application for Intervenor Status.  Attorney DeCrescenzo added that the courts assessment of whether or not the alleged damage will be unreasonable requires the Commission to have heard specific, quantifiable damage to the resource to support that.

 

Chairman Rice read the Intervenor’s item A, “The property will be clear cut eliminating natural vegetation, grubbed and graded, exposing soils that are highly erodible during the construction phase.  This will result in erosion and sedimentation of offsite areas, including wetlands and water courses.”   Regarding Planning Commission jurisdiction over this issue, Staff confirmed that erosion and sedimentation controls are reviewed and approved by the Conservation Commission under subdivision regulations, and there is evidence in the record that the Town’s Conservation Commission reviewed and approved the Applicant’s Soil and Erosion Control Plan, which included review following the State of Connecticut through the former Department of Environmental Protection manual providing best practices guidelines and generally-accepted principles associated with soil and erosion control, and the Applicant’s plan complied with those general principles with evidence in the record of measures to protect against sediment transport and approval from the regulatory agency charged with making that determination.  Attorney DeCrescenzo advised this Commission could either find it does not have jurisdiction, or if it found jurisdiction, does the Conservation Commission’s approval outweigh the Petitioner’s testimony and evidence and does that approval fall under the reasonably likely standard.  The Commission’s consensus was they did not have jurisdiction for item A.

 

Chairman Rice read the Intervenor’s item B, “In the post-construction phase a much greater volume of runoff will be generated at the site during storm events and will be discharged to offsite properties and to an intermittent water course and associated wetlands.  Since the proposed storm water management system cannot attenuate for the increased volumes of runoff, the intermittent water course and associated wetlands will be eroded and impacted by the sediment and down gradient properties will experience prolonged flooding.”  Staff reviewed this discusses if the storm water management system is approved as designed in the subdivision application, it will result in bad effects on the environment; and the treatment and volume of water as it leaves the site, where it goes, and the condition it causes moving from origin to destination and the impacts of that travel path – the issue is what are the impacts and are they quantifiably causing unreasonable harm. 

 

Commissioner Beum noted discussion of sheet flows onto Evans Drive and whether it impairs the public trust.  Attorney DeCrescenzo explained the term public trust is the general obligation of the Planning Commission to protect those natural resources; Mr. Rabbitt added the Commission is charged with protecting a public interest regarding environmental conditions.  Attorney DeCrescenzo added this relates to the quality of water in the adjoining land soils, e.g. if the land were destroyed by flooding or created pollution; there has to be a potential cause and quantifiable effect, e.g. an area is flooded causing vegetation to die, which is not in the record; the Commission needs to look in the record for a harm and whether it is quantifiable. 

 

Commissioner Needham asked if all 5 areas have to be proved.  Attorney DeCrescenzo responded any one area could be found proved.  Commissioner Needham believed there was nothing quantifiable in the record regarding the Petitioner’s item B.  Attorney DeCrescenzo believed there was testimony in the record regarding whether volume through the system would increase over present conditions for a 100-year storm, and the Applicant’s subdivision expert indicated the post-construction condition would result in no additional flow or minor peak flow, which evidence is in the record; it was believed the Petitioner’s expert offered a contrary viewpoint in the record.  The Commissioners found a lack of quantifiable evidence in the record for item B.

 

Chairman Rice read item C, “In the post construction phase, the site will generate pollution associated with development and impervious surfaces.  Since the proposed storm water management system is inadequate to effectively attenuate pollution, down gradient and offsite properties and intermittent water course and associated wetlands will be adversely impacted by pollution.  Commissioner Burt noted while it seems common sense that building will cause pollution, there is no evidence of parts per billion of a pollutant increase in the water.  Attorney DeCrescenzo noted that water quality is not within the Commission’s jurisdiction.  Mr. Rabbitt added it is either out of the Commission’s jurisdiction, or the Applicant has not met the burden of proof under State law, which may also be pertinent for item A.  The Commissioners agreed in any event that the burden of proof was not met by the Petitioner for item C.

 

Chairman Rice read item D, “The property will be clear cut and grubbed eliminating trees older than 100 years and permanently remove all understory.  These ancient trees provide special and unique habitat for many native species, including potentially listed species identified by the State of Connecticut’s Department of Energy and Environmental Protection and U.S. Fish and Wildlife Service as this area is shown as an area where such listed species are estimated to be found based on the most current DEEP mapping.”  Commissioner Beum recalled from the 01/10/2017 meeting jurisdictional discussions indicated item D. pertains to State agencies and is not within this Commission’s jurisdiction.  Town Staff confirmed that is contained in testimony; however, the Commission may also conclude devoid of jurisdiction whether or not the Petitioner met their burden of showing what quantifiable harm would result from the proposed activity.  Attorney DeCrescenzo explained that to quantify harm to trees over 100 years old would require showing how many there are, where they are, what kind of special habitat they provide, etc.  The Commissioners agreed the Intervenor did not provide quantifiable evidence to meet the burden of proof for item D.

 

Chairman Rice read item E, “The proposed designed storm water retention system is inadequate and will result in flooding and create unreasonably dangerous conditions if implemented resulting in harm to the environment, including damage to downstream habitat, the stream itself, and causing unreasonable soil erosion and potential flooding in addition to damaging the town’s roads, buildings, and potentially harming the town’s population.”  Attorney DeCrescenzo indicated the design of the storm water retention system is within the Commission’s jurisdiction.  Regarding damage to roads, buildings and people, the question is whether there is evidence in the record.  Attorney DeCrescenzo explained that “specific evidence” could also be used along with quantifiable evidence.  Mr. Rabbitt indicated the Commission should look at alleged cause and effect - what downstream habitat will be jeopardized, where and what type of erosion will occur, what quantity and what effect that will have on a resource – is that quantifiable evidence in the record.  The Commissioners believed the record did not contain specific or quantifiable evidence supporting environmental damage for item E. 

 

Chairman Rice noted the burden of proof has not been met for the Intervenor’s 5 items.  Mr. Rabbitt noted that the Commission has reviewed the draft motion to deny the Intervenor Application, and Counsel also provided a favorable draft motion for the Intervenor Application, with similar WHEREAS’s but noting on page 2, #2 it would require stating in a favorable manner for anything other than the previous discussion that, “As a result, the Commission finds that the Intervenor met his burden of proof that the subdivision application, if approved, is reasonably likely to unreasonably pollute, impair, or destroy the air, water, or other natural resources of the State of Connecticut, in particular.”; and then can the Commission identify what would occur as a result of the subdivision.  Chairman Rice believed from the Commission’s discussion it is not able to identify those items.  Chairman Rice reviewed the requirements for passing a motion; Attorney DeCrescenzo confirmed that an Application for a petition that is not approved is denied, an approval is an affirmative act and you cannot presume that a failure of a motion to deny is an approval; if it is the sense of the Commission that the Petitioner has not met the burden of proof, the better approach is to move to deny, and if that fails then go to the motion to approve.

 

Commissioner Needham made a motion to deny the Intervenor’s Petition as follows:

 

MOTION TO DENY INTERVENOR PETITION

 

 

                WHEREAS, on November 11, 2016, Jeremy Vearil, 82 Climax Road, Simsbury, Connecticut (“the Intervenor”) submitted an Application to intervene under the Connecticut Environmental Protection Act (“CEPA”), General Statutes §22a-19(a) to assert that the approval of the following subdivision application will cause certain environmental harm to the natural resources of the State of Connecticut:

 

APPLICATION 16-02 OF MANSOUR PRIME PROPERTIES, LLC

AGENT:  ROYCE PALMER OWNER; FOR A 19-LOT

AFFORDABLE HOUSING SUBDIVISION UNDER C.G.S. 8-30G

ON THE PROPERTY LOCATED AT 80 CLIMAX ROAD

(ASSESSOR’S MAP D20, BLOCK 608, LOT 001) ZONE R-40; and

 

                                WHEREAS, the Intervenor has the burden of presenting testimony and evidence that approval of the Application is “reasonably likely to have the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the State.”  General Statutes §22a-19.

 

                WHEREAS, in the Intervention Application, the Intervenor alleged that the Subdivision Application, if granted, is reasonably likely to unreasonably pollute, impair or destroy the public trust in the air, water and other natural resources of the state; and

 

                WHEREAS, The Intervenor identified five areas where he alleged that the Application, if granted, will pollute, impair or destroy the air, water and other natural resources of the state as outlined in his Petition attached hereto as Exhibit A; and

 

                WHEREAS, On November 22, 2016 the Commission approved the Application for purposes of allowing the Intervenor the opportunity to present his evidence in support of the Petition at a public hearing; and

 

                WHEREAS, the Intervenor presented his testimony and other evidence in support of his Petition at the Commission’s public hearings on December 13, 2016 and January 24, 2017; and

               

                WHEREAS, after considering the testimony and evidence presented by the Intervenor in support of his Petition, for the reasons set out in the Commission’s discussion of the Petition, the Commission hereby finds:

 

                1.  The Intervenor has failed to present sufficient evidence and testimony that the Subdivision Application, if approved, will result in unreasonable harm to the air, water and other natural resources of the State of Connecticut;

 

                2.  As a result, the Commission finds that the Intervenor has failed to carry his burden of proof that the Subdivision Application WHEREAS, after considering the testimony and evidence presented by the Intervenor in support of his Petition, for the reasons set out in the Commission’s discussion of the Petition, the Commission hereby finds:

 

                1.  The Intervenor has failed to present sufficient evidence and testimony that the Subdivision Application, if approved, will result in unreasonable harm to the air, water and other natural resources of the State of Connecticut;

 

                2.  As a result, the Commission finds that the Intervenor has failed to carry his burden of proof that the Subdivision Application, if approved, is reasonably likely to unreasonably pollute, impair or destroy the air, water and other natural resources of the State of Connecticut.

 

 NOW, THEREFORE BE IT RESOLVED,

 

                1.  The Intervenor’s Petition is hereby denied.

 

Commissioner Burt seconded the motion.  Chairman Rice called for a vote and the motion was passed with 5 Commissioners voting to deny the Intervenor’s Petition, and Commissioner Lungarini abstaining

 

 

Chairman Rice moved on to consideration of Application #16-02 for Mansour Prime Properties, LLC, Agent, Royce Palmer Owner.  He reviewed that the Commission has been provided with two draft motions – one to conditionally approve the Application, and the other a motion to deny; these draft motions have been modified to incorporate the Commissioners comments from the last meeting; and he asked Staff if any further comments were received from the Commissioners since the last meeting.  Mr. Rabbitt indicated receipt of correspondence from Commissioner Needham regarding site line, but Staff did not respond as it was posed as a question for this meeting. 

 

Attorney DeCrescenzo then asked to clarify in his letter on page 5 the statement, “The Town Engineer raises three drainage related issues where the failure of the Applicant to meet the Town standards for drainage design to roadway standards could result in harm to the public:  1) storm water retention basins do not infiltrate water after a storm causing drowning hazards; 2) storm water runoff sheeting over public roads where freezing could cause a traffic hazard; and 3) insufficient separation distance between roadway intersections as required by the subdivision regulations.”; in reviewing the materials he did not think it was accurate to attribute statement #2 solely to the Town Engineer and that the Town Engineer did not specifically comment that the storm water sheeting over public roads was a freezing hazard that could cause traffic hazards; rather, he believed that statement came through the Intervenor’s expert.  The Town Engineer, Jeff Shea, was present and confirmed he did not recall making any such statement.

 

Commissioner Needham resumed asking the question he submitted:  “Looking over the chart on site distances sheet P7.  Wasn't the purpose of this just to measure if a car could be seen from Hendricks in the low spot on Climax looking left from Hendricks?   Confused by the No in column as meeting standard.  Not the purpose of measurement I think.”  Commissioner Needham further explained his question for P7 that looking left southerly from the site pulling out onto Climax would a vehicle be visible in the low spot on Climax Road traveling north?  Mr. Rabbitt responded what drawing P7 shows is that plus or minus 350 feet away that vehicle in the low spot would be visible looking left onto Climax Road as you exit Hendrix from the 350-foot measurement on that plan; that drawing only represents the sight line for spotting a vehicle on Climax Road from the edge of their proposed travel lane, not the edge of pavement. 

 

Chairman Rice clarified before undertaking general discussion, he first wanted to find out if the Commissioners had submitted any further comments to the Town Planner since the last meeting, as those were the instructions.  Commissioner Needham began that this is a difficult site as there are drainage problems and storm water infiltration problems on a site with a lot of impervious surface proposed to be introduced; a lot of experts have disagreed juxtaposed to each other; the Town Engineer has provided an opinion and the Applicant’s engineers have reacted to some of those comments and disagreed with others.  He continued that Chairman Rice and he visited the site at the owner’s invitation and as he exited the driveway found he could only do so with the assistance of another person in the party; he could not see well enough to the left to assume the risk and was glad he did not have to do that every day; he drove by a day or two after St. Patrick’s day and found a large mound of snow on either end of the driveway where the road would be; he turned around in the driveway and could not see down the road at all and had to creep out into the road unsafely, although that may not be true all the time, but the way the sight lines are drawn they skim across the top of the topography so that anything (snow or vegetation) piling up more than a few inches will obstruct a driver’s vision, even if it is temporary with snow piling up for various amounts of time and noted measurements were not taken.  He felt it was a nasty place to pull out of and the soils are a problem and this is trickier than other places and he was very concerned about not having a safe sight line to pull out; the Applicant discussed the concept of stopping distance, which he understood to mean it is safe if you have plenty of time to stop if a vehicle is exiting onto Climax, but his experience is that you need to be able to see both ways and not rely on somebody being able to stop; they meet both the State and Town standard looking right, but looking left the only way they meet the standard is by putting in a stripe making a new edge to the road to gain a little more distance to see a little better, but they do not meet the Town standard for sight distance. 

 

Commissioner Beum agreed it was a problem as shown by expert testimony and the Town Engineer’s comments.  She continued that looking south there is also Wheeler Road where the State intersection standard distance is not met, combined with sight line deficiencies and periods of heavy traffic on the road causing a multiplicative effect.  Commissioner Needham commented that the inadequate distance to Wheeler plus the sight line issues plus the possibility of water on the road compound the problems.  Commissioner Beum agreed and added that having a car entering/exiting Wheeler during the morning commute is right at the spot where you also lose sight of a dip in the road of traffic coming in, so as you are trying to see what the car on Wheeler is going to do you could lose sight of the fact that a car will come over the dip when you think you have your chance to enter the road. 

 

Commissioner Needham noted the comments made by Hesketh and Associates amplify what the Commission is discussing regarding problems with sight lines, the distance to Wheeler Road not meeting Simsbury’s standards; the Town Engineer clarified these are two issues he has and recommended it not be approved, including for the issue of ground water.  Commissioner Leavitt-Smith agreed and pointed out that putting a stripe for a bike lane down the side of the road was not recommended by the Town - Commissioner Needham added that included the Police Chief, Town Engineer, and Director of Public Works, and that the bike lane proposal may have been an attempt to adapt to a difficult site with measurements taken from a different point, and looking south the only way the State standard is met is to measure from the edge line.  Chairman Rice asked if that is sufficient grounds for denial.  The Commissioners believed it was an issue of public safety that outweighs the need for these affordable housing units.  Commissioner Needham continued the inability to see left unless the road is striped according to Town experts creates an unsafe condition.  Commissioner Burt added it could be very dangerous if a car is turning left off Wheeler, a car is turning left off Hendrix, and a bike coming, and with water across the road, there is opportunity for a 3-car crash.  Chairman Rice commented that is a lot of ifs.   Commissioner Needham continued it is not an if, if you cannot see and the Commission is looking in subdivision applications for unsafe conditions.  Chairman Rice recalled asking one the persons giving testimony if the condition would be unsafe and they refused to answer.   Commissioner Needham looked it up in the minutes and found that it was written by the Applicant; he believed the purpose of standards is to create safe conditions.  Chairman Rice said standards could also be for sound traffic flow.  Commissioner Needham believed in this case traffic standards are about safety and if a regulation requires you be able to see a certain distance 20 feet off the road edge, and you don’t meet that standard the closer you get to the road to make a measurement, the less safe it becomes; he believed it is not just a regulation holding people to specifics, but is also a gauge of safety; he believed the Simsbury and State regulations are designed to create safe conditions, and if you don’t meet them, the more you don’t meet them the less safe it is.  He continued that looking south, because the stripe will not be allowed and the regulations are not met, the next step is that it is not a safe condition.  Commissioner Beum added there was public and expert testimony about the difficulty of pulling out onto Climax Road.

 

Chairman Rice moved to the subject of the Storm Water Management System and expressed concern about the varied conclusions from two respected and reputable experts and how to draw the line for who was right.  He continued that the Commission has input from Mr. Shea supporting at least one of the Petitioner’s experts regarding soil permeability in the retention pond areas and recalled that the test pits were not dug deep enough to really understand the soil properties underneath the retention ponds.  Commissioner Beum added that the Town Engineer was concerned with not only infiltration, but also did not agree with the suitability of the outlet point for the water discharge; the Town Engineer actually stated, “I do not recommend approval of the Application because of our concerns with the suitability of this outlet location.”, which is believed to result in sheet flow over Evans Road.  She lives on a low-density street that at times has sheet flow creating an icy situation with a neighbor totaling his car twice.  Commissioner Needham commented that the Town Engineer and other experts were concerned in certain storm conditions that water would leave the site in greater quantity post-development, but the Applicant says it will be less post-construction.  Chairman Rice added that the subdivision Applicant indicated it would be less in certain conditions.  Commissioner Needham agreed and discussed that the Commission has to determine which experts provided the best information, but the Town Engineer believes neither the Applicant nor Intervenor adequately tested the soils; there seems to be enough evidence to indicate more water will leave the site and the Town Engineer felt not enough testing was done regarding how fast the retention ponds would drain, which is also a safety issue.  He believed there are too many issues regarding whether water leaves the site and what happens to it; he felt authorization would be needed if water is going to cross someone else’s property – the Applicant doesn’t agree, but he Town Attorney does.  He felt that both points were valid and that the Commission is not expert enough to pick between them;   Chairman Rice noted according to the Town standards the rational method is acceptable and the Applicant met the requirements.  Commissioner Beum believed the Commission’s purview is to assess the results and which method of analysis is more credible and has found in her work creating a lot of engineering analysis models that the more complex the analysis the more credible the results.  Chairman Rice noted for the record and Commissioner Beum confirmed that she is not a professional civil engineer with that expertise.  Commissioner Needham noted consensus that both methods are appropriate with somewhat different results; however, the Town Engineer’s expert opinion is that more water will leave the property than currently and that will create some issues.

 

Chairman Rice restated his question to Mr. Rabbitt asking if he received further comments from the Commissioners, including his email dated 03/22/2017 detailing his proposed pro rata build out should the Commission decide on a conditional approval.  Mr. Rabbitt did not recall receiving that email.  Chairman Rice indicated he would make the appeal to go with a pro rata build out one more time.  Mr. Rabbitt double-checked and found receipt of the 03/22/2017 email and read it into the record: 

 

“4.  Pro Rata Construction

 

The Affordable Housing Units shall be offered on a pro rata basis as construction proceeds, in accordance with the following schedule.  The developer shall construct no more than four market rate dwelling units before constructing at least one affordable unit for families up to 80% of area median income and one affordable unit for families up to 60% of area median income.  Upon completion of construction of the two aforementioned affordable units and their availability for occupancy, by sale or rental of eligible residents, the developer shall be permitted to construct an additional four market rate units, as summarized in the schedule below.  The distribution of the construction of the units shall be ongoing in accordance with the schedule below, requiring the completion of the affordable units of Columns B and C, before the construction of the next phase of market rate units in the following row.  Completion of units, for the purpose of this provision, shall be defined as in receipt of a Certificate of Occupancy from the Town of Simsbury, construction of the dwelling unit complete and suitable for immediate habitation, or available for immediate sale or rental.”

 

Mr. Rabbitt noted the proposal for column A market rate units which may be built currently stands in the plan at 4, 4, 4, 1 for a total of 13, and Chairman Rice is proposing 3, 5, 5, and 0 for a total of 13; column B which is affordable units for families up to 80% median income was 1, 1, 0 for a total of 3, and Chairman Rice proposed front end loading at 2, 1, 0, and 0 for a total of 3; and for affordable units for families up to 60% median income was 1, 1, 1, 0 for a total of 3, and Chairman Rice’s proposed front end loading at 2, 1, 0, and 0 for a total of 3.  He described that as you read across the column when 3 market rates are built, they would have to build two 80% and two 60% and then when the next 5 market rate are built, they would build one 80% and one 60% and the obligation to build affordable units would be fulfilled upfront.  Chairman Rice asked the Commissioners to consider this proposal as a condition of approval.

 

Chairman Rice indicated the second note Mr. Rabbitt read relates to the Affordable Housing Statute requirement that someone or an entity be designated to handle the affordability restrictions; he understood from the Affordability Application that it be someone agreeable to the Town; and the Applicant is currently not compliant with this requirement.

 

Commissioner Leavitt-Smith expressed concerns based on the Town Engineer’s comments regarding issues such as percolation rates.  The Commissioners noted there are issues where there is disagreement between the Applicant and Town Engineer.  Commissioner Beum noted photos showing erosion in the public record before the additional runoff and found the Town Engineers comments cogent.  Commissioner Burt noted in the Town Engineers letter of 03/10/2017, in #4 having to do with the percolation rates being slower than identified by the Applicant and resulting in a safety hazard regarding drowning potential, which could be addressed by putting up a fence but there is no mention of a fence at this time.  Commissioner Beum commented that it is not the Commission’s job to redesign the project.  Mr. Rabbitt asked Commissioner Beum for clarification of which erosion photo she commented on; he responded that Staff review of that photo showed evidence that when that project was developed it was designed as a reinforced drainage swale armored with modified or intermediate rip rap and has subsequently been loamed or seeded, but the nature of that water course was not an erodible stance; Commissioner Beum acknowledged that she misinterpreted the photo.  Mr. Rabbitt clarified Commissioner Beum was referencing a REMA Associates report dated 01/24/2017, photo #2 showing a stream within Wheeler Road property of areas of overflow facing southwesterly, and it did not show areas of erosion.  Commissioner Beum indicated she was corrected. 

 

Regarding the Affordability Plan, Reason #4, Commissioner Leavitt-Smith recalled it was revised in November, but thought it was revised a second time.  Mr. Rabbitt clarified that the initial plan used a non-updated median income for Hartford County, which was revised in their November submittal; however, their calculations associated with mortgage payments in their November submittal were slightly off regarding the relationship between interest rate and payment, which were not clear as relates to using standard mortgage tables so that affects the sales price and that calculation needs to accurately reflect the cost associated with borrowing money; in summary, the mortgage payment numbers were off.  He added it is not an easy calculation because as you do the mortgage number that sets the sales price it changes the taxes due, which affects the ability to pay; it is a delicate balance on a sliding scale and Excel has a formula that can do that, but it is a matter of using the correct data as the project moves forward under the Affordability Plan to accurately set sales price, and is a correctable item.  He continued that the other aspect pointed out by Chairman Rice is that the Statute requires identification of a responsible entity to oversee the program; typically as part of the application process they identify the developer, but here they said they will identify someone and under strict interpretation of the Statute must do so, which can be corrected by changing a sentence. 

 

Commissioner Needham located the comment about water freezing on the roads in Mr. Lally’s 01/23/2017 report, which makes a couple of points the Applicant does not agree with, including:  “The deficiency listed above will lead to flooding on the road cul-de-sac area in all storms with intensity equal to or greater than that of a five-year storm.” and further on states, “Deficiency in storm water management lead to flooding of roads within and adjacent to the proposed development, freeze and thaw situations”; again, there are differing opinions.

 

Chairman Rice reviewed that should the Commission choose to make a motion to deny the Application, there are 3 tests to apply to each reason for denial:  1) the decision is necessary to protect substantial public interest in health, safety, or other matters which the Commission may legally consider; 2) in addition, such public interests clearly outweigh the need for affordable housing – he reminded the Commissioners that CGS 8-30g is designed to incentivize developers to create affordable housing and Simsbury under the State Statute is not at the desired percentage of affordable housing; and 3) such public interest cannot be protected by reasonable changes to the affordable housing development.  He continued those are the 3 conditions that anyone assessing the Commission’s decision will apply.  Commissioner Needham discussed that no one on the Commission is opposed to affordable housing, but it has to be in a place where the people living in such housing are safe.  His fear is that leaving this development with 19 houses and all the impervious surfaces will change a lot that currently barely handles the water it has into one that does not; the concern is that safety outweighs the need for affordable housing on that site, and it is too problematic to allow it; and he did not want to learn that someone was hurt because of some condition that the Commission allowed.  Commissioner Beum noted the many issues taken together exacerbate.  Commissioner Needham indicated there are so many issues that a large redesign of the project is called for, e.g. for traffic there is nothing they can do, unless they take some of the property, aside from the right of way next to them.  Commissioner Beum added that it is in the record that the Town Engineer deems it not safe enough to proceed with the Application. 

 

Chairman Rice noted that as the motion is read into the record, the Commission has the ability to modify it.

 

Commissioner Beum made a motion to deny Application #16-02 as follows:

 

1.            Motion to deny Application #16-02 by Mansour Prime Properties, LLC (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

 

This decision has been made in accord with Section 8-30g of the Connecticut General Statutes which requires the Commission to establish, based on evidence in the record, that:

 

A.            The decision and reasons cited for the decision are supported by sufficient evidence in the record; the reasons for this decision and evidence from the public hearing record that denial of the application was necessary to protect one or more substantial public interests the support for those reasons are cited below: 

 

                Reason #1: The applicant failed to demonstrate that the proposed road location satisfied the requirements contained in the Town of Simsbury Highway Construction and Design Standards associated with intersection sight distances.  The lack of proper sightlines is a public safety concern.  In addition, the applicant failed to demonstrate that the proposed road location meets the State of Connecticut Standards for intersection sight distances as measured 15 feet from the edge of pavement/traveled way. The applicant did propose to restripe Climax Road (11’ travel lanes and 5’ bike lanes – detailed on plans sheet P-6), however, that proposed treatment to Climax Road was rejected by the Director of Public Works and the Simsbury Chief of Police.  F.A Hesketh and Associates noted that the shoulder of the Road will need to be cleared of vegetation and snow to maintain the sight distances indicated on the plans. In the sightline profiles shown, when any vegetation growth occurs and/or when any snow accumulates sightline would be reduced substantially. Since this site is located in a northern climate and snow is common place during the winter season this scenario requiring snow to be removed from the shoulders of the road to maintain sightline creates an unsafe condition even in minimal snow events.

 

                Reason # 2:  The applicant’s revised plan grading (prepared by James N Sakonchick - P.E. and L.S.) and sightline profiles (prepared by James N Sakonchick - P.E. and L.S.) contained different grading scenarios which make it difficult to determine the actual grading required to accommodate proper sightline. Plans submitted as of January 24th, 2017, include inconsistencies in proposed features among sheets. Sheet G-2, “Roadway Grading Plan”, has not been revised consistent with Sheet G-1, “Grading and Erosion Control Plan.”  Also, the current title of Sheet G-2 is misleading as it indicates a temporary site grading plan during lot development as opposed to a roadway grading plan.

 

Reason # 3:  The applicant failed to demonstrate that the proposed road location satisfied the requirements contained in the Town of Simsbury Highway Construction and Design Standards associated with intersection separation distances.  In addition the proposed road location does not meet the State of Connecticut standard for intersection separation distance as referenced in the State of Connecticut Highway Design Manual.

 

Reason # 4:  The applicant’s revised affordability plan does not meet the standards set forth in 8-30g as it relates to the affordability calculations and does not name a person and/or entity responsible for oversite of the plan.

 

Reason #5:  The Town’s Engineer has stated that the proposed drainage is not in compliance with Town Highway Standards in regards to the discharge of the storm drainage to a suitable discharge point. 

 

Reason #6:  The applicant has not demonstrated that they have adequate right to drain through private properties downstream of the proposed storm drainage system per Town of Simsbury Highway Construction and Design Standards. 

 

Reason #7:  The applicant failed to submit valid soil testing in the area of their proposed basins. Standard practice for infiltration system design includes testing at appropriate elevations in relation to the proposed detention / retention pond as well as testing in the vicinity of each pond to avoid localized anomalies. 

 

Reason #8:  Infiltration data provided by the intervener and infiltration rates developed by the applicant are not sufficient to accurately model the length of time required for each pond to drain dry. Ponds that retain water for extended periods can be a safety hazard in regards to drowning potential and insect breeding.

 

Reason #9:  Although the applicant added a drywell to Pond 2 hydraulically separated from the outlet structure, versus performance of the drywell depends on the surrounding and underlying soils, which have not been investigated to the proposed depth as indicated by test results to date. Therefore the functionality of the proposed structure has not been proven.

 

Reason #10:  The applicant did not provide sufficient topographic information within the ROW of Climax Road at the proposed outfall, FE #10. Information presented on Sheet P-2 is not sufficient for final review and approval. 

 

Although a number of these may be able to be resolved by modifying the plans, and/or other language the mere purpose of subdivision approval process is to determine that the subdivision of land into lots can support the proposed development.  The Commission is in no position to redesign the applicant’s proposed subdivision and the fact that it is an 8-30g application should not undermine the commission’s ability to determine that the proposed development will offer housing that will not jeopardize the resident’s safety and/or health.

 

 

B.            The decision is necessary to protect substantial pubic interest in health, safety or other matters which the commission may legally consider;

 

The decision is necessary to protect the following public interests:

 

1.            Public safety through the provision of safe and adequate transportation systems.

2.            Consistency with proposed density to protect valuable natural resources, including but not limited to wetlands and watercourses. 

 

C.            Such public interest clearly outweighs the need for Affordable Housing.

 

Given the substantial public interest cited above; the collective totality of the evidence in the hearing record (including staff and public testimony) documenting the inconsistency of the affordable housing application with long-standing, existing policies and goals; the adverse impact on the public health and safety and the historical effort to plan how the community develops (per Plan of Conservation and Development and Comprehensive Plan), the Commission finds that the substantial public interests clearly outweigh the need for Affordable Housing in the specified location and that the application for subdivision as proposed is reasonably likely to cause  harm to the public and the risk of such harm clearly outweighs the need for affordable housing and cannot be corrected with revisions to the application.

 

D.            The public interest cannot be protected by reasonable changes to the Affordable Housing Development.  The Planning Commission cannot consider whether any “plan specific” problems might be eliminated or adjusted by reasonable design modifications without completely re-evaluating the design.  The Commission cannot require modifications of plans that may completely affect the final design and/or final lot yield. The physical “site specific” constraints associated with the proposed site cannot be changed by a decree of this commission.

 

The Commission further finds that there is substantial public interest in rejecting the “Affordable Housing Development” due to the unsafe traffic conditions, and potential adverse impacts of water discharge associated with the development of the site. We further conclude that the public interest cannot be protected by reasonable changes to the proposal and only denial of the application is practical for this site.

 

Commissioner Needham seconded the motion, as amended.  Chairman Rice called for a vote and the motion was passed with 5 Commissioners voting to deny Application #16-02, and Commissioner Lungarini abstaining.

 

Attorney DeCrescenzo informed the Commission of the next step for the 8-30g Statute, subsection H. which says, “Following a decision by the Commission to reject an affordable housing application, the applicant may within the period file an appeal of such decision, submit to the Commission a proposed modification of its proposal responding to some or all of the objections or restrictions articulated by the Commission, which shall be treated as an amendment to the original proposal.  The Commission may hold a public hearing on the proposed modifications and the Commission shall render a decision on the proposed modifications not later than 65 days after receipt of such proposed modifications.”  He clarified that the Applicant can:  1) do nothing and let the denial stand; 2) bring an appeal; or 3) file a modified proposal with the Commission, which obligates the Commission to hold a public hearing and then have a second round of decision making.  Attorney DeCrescenzo believed the Applicant has 30 days to file a modified proposal with 65 days for the Commission to make a decision.

 

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. (public hearing to open 03/28/2017)

 

Chairman Rice noted that as discussed earlier, the Applicant requested that the Public Hearing be opened but tabled, and there will be no discussion of this Application at this time.

 

 

V.            NEW BUSINESS

1.            Receipt of New Applications

a.            None

2.            Referrals

a.            None.

 

 

VI.          GENERAL COMMISSION BUSINESS

1.            POCD Update

 

Staff provided the Commissioners with a first draft of the revised POCD received today reflecting community input with more information to be added; it is planned that the Consultant will attend the Commission’s 1st April meeting; the Commissioners were requested to review the draft in order to provide comments at the April meeting; a text amendment is also planned to be provided to the Commission regarding setbacks as they relate to parking lots and access drives for non-residential zones.  Mr. Rabbitt requested the Commissioners review the draft to refine content, including flow, functionality, ease of reading, potential demographic information with adjustments to allow for grant applications; the document will also be available on the community web page once the digital copy is received.

 

 

Mr. Rabbitt provided an overview of an application received 03/27/2017 from the Silverman Group for 200 Hopmeadow, which is the northern portion of the Hartford property.

 

 

VII.         ADJOURNMENT

 

Commissioner Needham made a motion to adjourn the meeting at 9:20 p.m.

 

Commissioner Beum seconded the motion, and it passed unanimously.