Planning Commission Minutes 04/12/2016

PLANNING COMMISSION

APRIL 12, 2016

REGULAR MEETING

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.  Other members and alternates in attendance were:  Elizabeth Burt, Holly Beum, Robert Kulakowski, Erin Leavitt-Smith, Ron Locandro, Jr., and Mark Drake.   Also present were Jamie Rabbitt, Director of Planning and Community Development; Michael Glidden, Assistant Town Planner; Janis Prifti, Commission Clerk; and other interested parties.

 Pledge of Allegiance

ROLL CALL

Appointment of Alternates

Chairman Rice reviewed that the Simsbury Planning Commission is comprised of 6 regular members and 3 alternate members.  Chairman Rice indicated that this evening one regular member is absent, Alan Needham, and he appointed Alternate Elizabeth Burt to serve in his absence.

APPLICATIONS:

Old Business

Public Hearings:

New Business

Receipt of New Applications

Application #16-01 of Mansour Prime Properties, LLC, Agent; Royce Palmer, Owner; for a 23-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.  (received 03/22/2016; decision must be rendered by 05/26/2016)

Chairman Rice read Application #16-01 into the record and invited the Applicant to comment.  The Applicant responded they were present but had no comment.  Chairman Rice believed there would be quite a bit of public comment to come on Application #16-01.

Chairman Rice made a motion to defer public comment to the Public Hearing to be held on May 10, 2016, at Eno Memorial Hall, 7:00 p.m.

Commissioner Kulakowski seconded the motion, and it was passed unanimously by Commissioners Leavitt-Smith, Kulakowski, Locandro, Beum, Burt, and Rice.

Referrals

CGS 8-3a Referral to the Zoning Commission on Zoning Application #16-09 of Kenneth T. Pignone, Petitioner, for Text Amendments to the Town of Simsbury Zoning Regulations to:  Article Four, Definitions; and Article Seven, Section 9, Accessory Dwelling Units.

Chairman Rice read the referral for Application #16-09 into the record and summarized it is a referral from the Zoning Commission asking the Planning Commission to evaluate the proposed text amendments for consistency with the Plan of Conservation and Development (POCD).  Chairman Rice then recused himself due to possible conflict of interest; and Commissioner Kulakowski, Commission Secretary, became Acting Chairman. 

At 7:05 p.m., Regular Commission Member, Alan Needham, joined the meeting; however, Commissioner Burt remained seated.  Acting Chairman Kulakowski appointed Alternate Commission Member, Mark Drake, to serve for Chairman Rice during his recusal.

Mr. Rabbitt clarified the referral for Application #16-09 from the Zoning Commission requires an opinion from the Planning Commission regarding the proposed amendments to regulations and their consistency with the POCD.  He believed the POCD to be relatively clear on the types of housing it wants to encourage in Town, which include accessory apartments - so that any potential changes to that or restrictions placed on size, location, or the ability for someone to reapply could be considered inconsistent with the goals and objectives of the POCD, and the Planning Commission must make that decision. 

Commissioner Drake asked for an update on present regulations.  Mr. Rabbitt explained that present regulations allow individuals within a residential zone to convert an existing dwelling to utilize part of the home in an accessory manner, so there is a primary residence and a rental unit within the home; the Commission has both approved and denied some of those applications.  Mr. Rabbitt indicated some denials were based on location; there are sections in the regulations that deal with the Commission’s ability to react to conditions associated with an application’s impacts on the neighborhood where it is proposed.  Mr. Rabbitt noted the primary issue at stake in the proposed amendments is the applicant’s ability to reapply following denial as the amendments would take that right away, which could present legal issues.  The Commissioners discussed which Commission they would reapply to; Mr. Rabbitt responded they would reapply to a different or similar commission with slightly different conditions.  Commissioner Drake asked about the Zoning Board of Appeals (ZBA) jurisdiction over variances.  Mr. Rabbitt explained the ZBA cannot issue a use variance, which is in essence illegal in Connecticut; any decision of a Zoning Commission or commission is appealable to a Superior Court in Connecticut - there is no variance of a commission’s decision at the local level nor to ZBA; decisions of a Zoning Enforcement officer are appealable to ZBA.  Mr. Rabbitt confirmed appeals to ZBA occur only if an applicant is clearly outside the regulations.  However, in this instance Mr. Rabbitt indicated accessory units are allowed by the regulations through a permitting process, and some items reviewed by the Commission are subjective, e.g. does it affect and adjacent property, the neighborhood or community.  Commissioner Drake asked if in existing zoning regulations there is a regulation about turning residential property into rental property, although hardship and in-law apartments have been allowed.  Mr. Rabbitt clarified the primary use of a property must be single-family owner-occupied and then regulations allow an accessory unit can be added following a permitting process – evaluation criteria include not changing the home’s character, providing parking and entry; separation of uses, hard data on the impact on the neighborhood, properties, and traffic, etc.; however, a home cannot be bought for investment purposes and converted to a duplex with the owner not living there.  Mr. Rabbitt explained that current regulations allow accessory units and the proposed amendments would prohibit the ability for someone to reapply; and there would be changes to provisions for how the Commission evaluates an accessory unit with pieces pulled from different municipalities, perhaps in a less cohesive manner.  Mr. Rabbitt continued the Planning Commission’s decision focuses on consistency with the POCD.  The Commissioners discussed their need to fully understand the proposed amendments and examples.  Mr. Rabbitt proposed Staff highlight the changes to provide a comparison for discussion at the next meeting; Acting Chairman Kulakowski requested a redline of changes in order to weigh it against the POCD.  Commissioner Beum asked how denying the right to appeal related to the POCD; the Commissioners noted their analysis would be more involved than that. 

The Commissioners discussed that alternates have always been able to comment at meetings over many years.  However, Mr. Rabbitt discussed that the Town Attorney recently reviewed the legal policies and procedures with the Conservation Commission clarifying that, unless an alternate is seated, they cannot partake Commission business with the exception of the public hearing process where an unseated alternate can ask questions associated with the hearing process because the public at that time is allowed to ask questions.  Mr. Rabbitt understood that past practices have been different but clarified this is a formal referral that the Commission needs to act on and the applying entity has the right for it to be acted on by the 6-member Commission, not 8 or 9 members.  Acting Chairman Kulakowski indicated the Commission would defer to the legal requirements and procedures.

Acting Chairman Kulakowski made a motion to table Application #16-09.

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

At 7:25 p.m. William Rice returned to Chair the Commission and Commissioner Drake was no longer seated; and Commissioner Burt remained seated.

CGS 8-24 Referral on the replacement of the Tariffville Water Storage Tank

Chairman Rice read the CGS 8-24 referral into the record.

Shelby Beauchemin represented the Tariffville Fire District and reviewed that the current Tariffville water storage tank located on Laurel Hill is on land purchased with a DEEP open space grant given to the Town of Simsbury and there is a conservation and public recreation easement on the land.  She indicated the current water storage tank and associated water main are on their own easement; they are proposing a new easement for the new water main that is within the road accessing the tank on the Woods Road access leg off of Mountain Road; and they are also proposing a new easement around the proposed water storage tank, which would be located adjacent to the existing water storage tank.  She indicated the new tank would look similar to the existing tank in size and concrete material; the existing 330,000-gallon tank is over 80 years old and is the only tank in the Tariffville system and is vital to their infrastructure, e.g. it regulates system pressure and helps with fire flow.  She believed the project to be in accordance with the POCD, under Policy 1 regarding infrastructure that the Town must insure that an adequate and safe water supply for consumption and fire protection exists to serve current and future users.

 Chairman Rice asked if they are seeking any other deviations or variances, other than the easements?  Ms. Beauchemin responded they would seek a special exception from Zoning for an infrastructure improvement.  Chairman Rice clarified the Commission is evaluating this referral from the perspective of the POCD.   Commissioner Beum asked if there would be destruction of vegetation.  Ms. Beauchemin showed the Commissioners a photo of a vegetated area where some trees would need to be removed.  She noted that off of Mountain Road is Woods Road which accesses the current tank and is maintained and has been improved by Eversource, which also allowed Tariffville to piggyback putting in the new water line and save on costs.  She explained there would be about 5-6 feet of backfill against the tank and some regrading.  She indicated for the conservation and public recreation easement, some hikers use the area to access Metacomet Trail with the tank only barely visible from the hiking trail. 

Mr. Rabbitt reviewed there are two aspects for the proposal:  1) physical construction of the improvement within the Town plan; and 2) the adjustments of the easements to accommodate it.  Chairman Rice asked if there were any recreation aspects to the parcel?  Mr. Rabbitt confirmed a State marked trail does cross the area and the Water Company is committed to assuring the trail stays open and an integral part of the system.  Ms. Beauchemin confirmed a new 8-foot high chain link fence with barbed wire at the top will surround the tank area; and she showed the Commissioners the location of silt fence and hay bales on the design drawings to protect wetlands with a special construction entrance to prevent movement of sediment away from the site.

Commissioner Beum made a motion that the proposed Tariffville Water Storage Tank replacement and associated easements modifications are consistent with the 2007 Town of Simsbury POCD.

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

CGS 8-24 Referral Town of Simsbury FY 16-17 Proposed Capital Improvement Plan

Chairman Rice read the CGS 8-24 referral into the record.

Jeff Shea, Town Engineer, indicated that this review is typically done during the budget process with a request for a positive referral from the Planning Commission for the Plan; he provided information sheets for each project and offered to provide specific details, as requested.  Mr. Shea clarified the West Mountain Road sewer interceptor project was approved in a previous year and is therefore not included in the suggested resolution; but the Massaco Street Extension is included in this plan. 

Commissioner Burt asked about the open space plan improvements on page 10 estimated construction cost of $715,000 and what is being constructed?  Mr. Shea responded for fiscal year 2017, they are requesting $400,000 for completion of an open space master plan for the entire Town as they recently completed an inventory of all their parcels rated at the preliminary level regarding environmental quality; the next step would be to look at the parcels and determine what resources, security, and improvements may need to occur on those parcels with the master plan providing a blueprint going forward.  Commissioner Burt asked what would be constructed?  Mr. Shea indicated the $715,000 includes funding allocated prior to this fiscal year for 2018, 2019 and 2020 and how those funds will be spent is not known at this time but act as placeholders.  He said in fiscal year 2017, the $220,000 for 1 Old Bridge Road would be for demolishing the structure and providing passive recreational improvements to the parcel; a master concept plan for the property has been completed and they are advancing the design.  Commissioner Leavitt-Smith asked whether the supplemental appropriation dollars are set or contingent on funding for two asterisked projects for 2016?  Mr. Shea responded the BOF has not acted at this time on how those projects will be funded, e.g. fund balance or bonding. 

Mr. Rabbitt confirmed the proposed resolution cites numerous parts of the POCD; the resolution could be read into the record in its entirety or reference the resolution prepared by Bond Counsel received by the Planning Department on April 12, 2016 that starts out “TOWN OF SIMSBURY RESOLUTION OF PLANNING COMMISSION …..through item #25”.   Chairman Rice asked if the Commission is being asked to approve these projects?  Mr. Rabbitt clarified the Commission would be making a decision that the projects that are part of the Town Capital Improvement program, which spans a number of years, is consistent with the objectives of the POCD; whether they are constructed in that timeframe or dropped off the list, they have to be on a list, but under 8-24 they may return to the Commission if their scope changes.  Commissioner Rice noted the 2nd page of the resolution states “RESOLVED, that the Planning Commission of the Town of Simsbury approves the following projects pursuant to 8-24 of the Connecticut General Statutes.”  Mr. Rabbitt responded that approval indicates determining consistency with POCD, not regulatory approval; this is an 8-24 referral from the BOS regarding potential improvements to Town-owned property.  Chairman Rice expressed preference for revising the resolution to indicate consistency with the POCD as opposed to “approves”.  Mr. Rabbitt clarified the resolution would be revised on page 2 to state, “RESOLVED, that the Planning Commission of the Town of Simsbury finds that the following projects pursuant to 8-24 of the General Statutes of Connecticut are generally consistent with the goals and objectives of the Town of Simsbury Plan of Conservation and Development.”  Once the motion is approved, Mr. Rabbitt will assure the BOS is aware of the change to the resolution’s language.

Chairman Rice made a motion that the Planning Commission finds that the 25 Capital Improvement Projects identified in the document that starts out by saying, “TOWN OF SIMSBURY RESOLUTION OF PLANNING COMMISSION” are generally in accordance with the requirements and expectations of the 2007 Plan of Conservation and Development, subject to amending the text, as discussed, to change the word “approves” to “finds that the projects are generally consistent with the POCD”.

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

Mr. Rabbitt requested the Commission add item b. iv. for the 8-30g Application for Climax Road referral to Conservation Commission; a ¾ vote of the Commission is needed to amend the Agenda. 

Chairman Rice made a motion to amend the Agenda to add item b. iv. CGS 8-30g Referral to the Conservation Commission of the Subdivision Application submitted for 80 Climax Road.

Commissioner Kulakowski seconded the motion.

The Commissioners discussed the referral to the Conservation Commission.  Mr. Rabbitt clarified that the Conservation Commission has statutory requirements regarding erosion and sedimentation control for the Town, which applies to review of this Application, and this would be a formal referral to them; their formal approval is required to come back to the Planning Commission in a timely manner before its review.  Mr. Rabbitt clarified the Public Hearing opens on 05/10/2016 with 35 days by statute to close that proceeding, and the applicant can consent to an additional 65 days of extensions at any time during the proceedings, which now would be Public Hearing or post Public Hearing.            Mr. Rabbitt explained an Application is treated on the merits of its validity, not on any past procedure.  Chairman Rice called a point of order with the motion seconded and a vote required.

 The motion was passed unanimously.

CGS 8-30g Referral to the Conservation Commission of the Subdivision Application submitted for 80 Climax Road

GENERAL COMMISSION BUSINESS

Executive SessionPending Litigation

Chairman Rice noted according to the Guidelines a motion to enter Executive Session must be approved by ¾ of the members.  Commissioner Kulakowski suggested approving the meeting minutes before the Executive Session.

Mr. Rabbitt indicated regarding litigation he did not yet have an answer from Counsel; he will meet with Counsel tomorrow noting litigation has not been filed against the Planning Commission and suggested tabling this item.  The Commissioners felt it was very important to understand the whole situation.  Mr. Rabbitt noted under Executive Session, the Freedom of Information Act (FOIA) provides that if there is pending or the threat of imminent litigation the Commission can go into Executive Session to discuss that litigation, and can also invite the necessary Town Staff with information germane to the conversation e.g. Town engineer, counsel, planning director, assistant planner, environmental scientist, etc. and must identify who those individuals are potentially providing guidance; they can also go into Executive Session for personnel matters with the ability for those individuals to be present and to have that session in open forum.  Mr. Rabbitt preferred to get clarification from Town Counsel prior to discussion with the Commission in order to comply with FOIA; this discussion may be on the Agenda in 2 weeks.

Chairman Rice made a motion to strike the matter of “Executive Session” from the Agenda.

Commissioner Locandro seconded the motion, and it was passed with 5 in favor and 1 opposed.

Commission Education/Workshop (time permitting)

Chairman Rice tabled discussion of the Workshop.

V.        APPROVAL OF MINUTES of March 8, 2016

The Commissioners discussed reflecting the seating of members in the minutes.

Commission Secretary Kulakowski made a motion to accept the March 8, 2016, Minutes, as written.

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

Chairman Rice asked if there was any new business.

Commissioner Leavitt-Smith inquired how the date of 05/10/2016 was decided for the Public Hearing?  Mr. Rabbitt explained it was partly based on available space and size of the space given the amount of calls received; the date of 06/14/2016 is also reserved at Eno if needed; also the application abuts Avon requiring notification to them and also 35-days’ notice to the Capital Region Council of Governments before scheduling a hearing – if they are tight on those dates, the hearing may need to be continued. 

Commissioner Beum noted the public does not understand all the rules and regulations.  Mr. Rabbitt indicated Staff would work diligently to explain policies and procedures at any Public Hearing to the public.  Commissioner Leavitt-Smith believed significant information is available and the public will arm themselves with as much information as possible.  Mr. Rabbitt added that if conduct of a public hearing is a concern and what 8-30g is, it can be discussed at the next meeting avoiding any specifics regarding any applications before the Commission.  Chairman Rice noted there are some Facebook pages with a lot of chatter.  Mr. Rabbitt clarified the appropriate time for discussion is during the hearing process for an application on the specifics of that procedure or as correspondence from Staff that gets into the public record; Staff is prepared for all applications to explain the process.  Mr. Rabbitt reiterated that the purpose of a Public Hearing is for the Commission to receive comments; during public testimony for an application care must be taken to assure comments are germane to the regulatory process; and counsel advises using the 3-minute rule with an opportunity to go around the room again. 

On another topic, Commissioner Locandro asked about the basis for recusals.  Mr. Rabbitt responded those determinations should be made on an individual basis, but if there is a perception of conflict, it is safest to recuse oneself.

Chairman Rice noted there would be another Commission meeting prior to the Public Hearing for further discussion.  Commissioner Beum expressed sympathy for the voters understanding of the process.

VI.       ADJOURNMENT

Commissioner Kulakowski made a motion to adjourn the meeting at 8:19 p.m.

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