Planning Commission Minutes 04/26/2016

PLANNING COMMISSION

APRIL 26, 2016

REGULAR MEETING

CALL TO ORDER

Chairman William Rice opened the Regular Meeting of the Planning Commission at 7:01 p.m. in the Main Meeting Room at the Town Offices.  Also present were Jamie Rabbit, Director of Planning and Community Development; Michael Glidden, Assistant Town Planner; Janis Prifti, Commission Clerk; and other interested parties.

 Pledge of Allegiance

Ellis Wang led attendees in the Pledge of Allegiance fulfilling requirements for a merit badge.

ROLL CALL

Commission members and alternates in attendance were:  William Rice, Gary Lungarini, Holly Beum, Alan Needham, Robert Kulakowski, Erin Leavitt-Smith, Ron Locandro, Jr., and Mark Drake.  

Appointment of Alternates

At meeting start, a quorum was present; therefore, alternates Mark Drake and Gary Lungarini were not seated.  However, for the CGS 8-3a Referral from the Zoning Commission on Zoning Application #16-09 of Kenneth T. Pignone in 2.b.i. below, Chairman Rice recused himself and Acting Chairman Kulakowski maintained a quorum by seating Mark Drake.  At the conclusion of the Referral discussion, Commissioner Rice returned to Chair the meeting and Commissioner Drake was no longer seated.

APPLICATIONS:

Old Business

Public Hearing(s)

Referral from Planning Commission for review of erosion and sedimentation plan on Planning Commission 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; public hearing scheduled to open 05/10/2016)

Chairman Rice noted that at the last meeting, the Commission decided to postpone any comment until the Public Hearing on May 10, 2016, at Eno Memorial Hall at 7 p.m.

New Business

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. (continued from 04/12/2016)

At 7:05 p.m. as he did at the last meeting, Chairman Rice recused himself and asked Commissioner Kulakowski to act as Chair in his absence.  Mr. Rabbitt advised that an alternate could be seated, if desired.   Acting Chairman Kulakowski seated Mark Drake in Commissioner Rice’s absence.

Acting Chairman Kulakowski read Application #16-01 into the record.  Mr. Rabbitt noted the Planning Commission’s function was to determine whether the proposed text amendment is consistent or inconsistent with the POCD; Mr. Glidden provided the Commissioners a memo with a side-by-side comparison of the current text and proposed text changes.  Commissioner Beum thanked Staff for the comparison memo; she believed there were more changes than just for re-application following denial of an accessory dwelling unit; those other changes included:  definitions of a dwelling unit and family, with legal adoption removed.  Commissioner Needham added he was not sure about the legal ability to change definitions without vetting by counsel.  Commissioner Locandro noted the Commission’s focus relates to the POCD and Article Seven, would be a lot more restrictive regarding use of the accessory units to protect areas from becoming rental units, and did not find it in the spirit of Policy 5 that part of a house would need to be torn down when a parent passed away; with other developments in Town working to have more affordable or rental units, accessory units represent a small fraction in Town, e.g. a studio.  Commissioner Needham noted in the POCD the goal of “enabling and promoting greater diversity in Simsbury’s housing options”.  Commissioner Beum believed this would open the door to allowing everyone to create rental units in single-family residences in accordance with the POCD; she lived in towns where once it began it became a large part of housing stock.  Commissioner Drake noted that housing developments are being created to promote that diversity, rather than turning single-family houses into duplexes. 

Commissioner Beum noted criteria that the “special exception permit shall be subject to review every two years”, and “the accessory dwelling shall be removed within 120 days of the termination of the special use”, and another issue that “removal of the accessory dwelling is herein defined as removal of all kitchen appliances and fixtures and the removal of utility lines and pipes servicing these fixtures”; in her neighborhood people have been putting in basement sleeping/bathing facilities for their teenagers.  Acting Chairman Kulakowski clarified that was not the POCD’s focus but would be a zoning regulation and issue.  Commissioner Locandro noted the proposed text is more restrictive and moves away from the current spirit of the POCD.  Commissioner Drake noted what was incorporated in the POCD was to change the opinion of what type of housing stock to promote in Town, not another level allowing all types of diversity; the point was not to just have single-family homes, but to allow cluster housing, more apartments, and some low-income housing, etc., not to change all single-family homes into multi-family dwellings as implied in this discussion.  Commissioner Drake agreed having to remove all appliances is impractical and does not make sense.  However, he noted if an applicant keeps re-applying without making any changes, that is what this change in regulation is trying to address.  Commissioner Locandro noted that re-applying has nothing to do with the POCD, which is the document this Commission uses to evaluate referrals.  Commissioner Beum noted language on page 119, “review and expand existing regulations to support the full range of age-restricted housing types as part of thoughtful planning to assist Simsbury seniors”, which the original regulation supported and not being able to re-apply could make it harder.   Commissioner Leavitt-Smith discussed the purpose is to review whether the changes are in conflict with the POCD.

Mr. Rabbitt summarized there is an existing regulation and Zoning is reviewing an application to change that standard; this Commission’s role is to review the proposed changes to see if they are generally consistent with the goals and objectives of the POCD and whether those changes affect POCD policy; however, the regulatory aspect of whether some of the language is legal is a Zoning matter and only the ZBA can set limits on re-application.  He noted that whether the more restrictive language change affects POCD policy is for this Commission to decide.  The Commissioners discussed the proposed more restrictive change in language and it effect on the POCD.  Commissioner Drake clarified that when the Commissioners wrote the POCD the intent was for more housing diversity.

Commissioner Locandro made a motion for 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, that the Commission give a negative referral due to the increased restrictive nature of these changes.

Commissioner Needham seconded the motion.

Mr. Rabbitt asked if the negative referral conclusion was because the changes were inconsistent with the goals and objectives of the POCD?  He noted it may be important to have specific language in the motion relating to the POCD and to have clarity in the motion.  The clerk read the motion back.  Commissioner Needham added “with respect to the POCD’s call for encouraging diversity in housing”; Commissioner Locandro agreed his intent was that the proposed change is more restrictive regarding the housing market. 

The motion was withdrawn.

Regarding Application #16-09 submitted by Kenneth T.  Pignone, Commissioner Needham made a motion for a negative referral in that the Commission finds the proposed changes inconsistent with the POCD, particularly with respect to the POCD’s calling for diversity of housing.

Commissioner Locandro seconded the motion, and it was passed with 4 in favor and 2 opposed.

At 7:35 p.m. William Rice rejoined the meeting resuming Chairmanship; Commissioner Drake was no longer seated.

Old Business

Public Hearing(s)

Referral from Planning Commission for review of erosion and sedimentation plan on Planning Commission 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; public hearing scheduled to open 05/10/2016)

Regarding whether there have been any changes to the material submitted, Mr. Rabbitt advised the same site plan is in effect, except that affordable units have been identified, and they will double check for changes.

Chairman Rice asked for clarification about:  1) whether there was any new material in the packet; Mr. Rabbitt confirmed they would verify that and send out any necessary corrections to the Commissioners; and 2) proposed the Commission do a site walk of the property coordinated with the property owner and noticed properly as a Special Meeting, which requires 24-hour notice.

Chairman Rice made a motion to perform a site walk on 80 Climax Road, date and time to be determined, assuming concurrence of the property owner and also asking the property owner or Applicant, if they are not the same person, if they could stake out the center line of the proposed road in order to have an image of what the changes might be.

Commissioner Needham seconded the motion.

Chairman Rice amended the motion that the site walk occur before the 05/10/2016 Public Hearing.

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

The Commissioners discussed having the site walk on 5/7/2016 in the morning; Staff will coordinate the date and time with a potential second site walk for Commissioner Beum and a desire to not inconvenience Staff.

GENERAL COMMISSION BUSINESS

Executive Session

Pending Litigation

Commissioner Kulakowski made a motion to strike the Executive Session from the Agenda.

Commissioner Needham seconded the motion.

Commissioner Leavitt-Smith asked what the pending litigation was?  Mr. Rabbitt advised it pertains to a Workforce Housing Overlay Zone (WHOZ) where an application denied by Zoning has potential implications for Planning; complicated discussions for one property under WHOZ are ongoing.

The motion was passed unanimously.

Commission Education/Workshop (time permitting)

Chairman Rice made a motion amend the Agenda to take up Approval of Minutes prior to the Education/Workshop.

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

V.        APPROVAL OF MINUTES of April 12, 2016

The Commissioners discussed when people arrive and how to reflect that in the minutes.  Mr. Rabbitt noted following Roll Call, typically if a Commission member arrives later, it is clarified under the Roll Call section when they arrived.

On Line 25, Commissioner Alan Needham’s arrival at 7:05 is added.

Chairman Rice made a motion to approve the April 12, 2016 Minutes, as amended.

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

Regarding Policies and Procedures

Mr. Rabbitt provided the Commissioners with a letter dated 4/26/2016 from Town Counsel summarizing roles and responsibilities of an alternate, which is that they have the rights of a full Commission member when seated but when not seated they do not have those rights; they have rights to attend Executive Session; and in work-type general discussions, they have the right to participate in discussions.  Attendees at Executive Session can include:  regular members; alternates; and under FOI, Staff member germane to the discussion, who must be identified.  Commissioner Drake noted the regulation sent to him only indicates that alternates cannot make motions or vote and does not mention that alternates cannot participate in discussions; precedent over the past 15 years allowed alternates to participate in discussions and it would be a change in Board dynamics to not allow all members to speak.  Chairman Rice noted the statute says when members are seated, but it does not say what they can/cannot do when they are not seated.  Commissioner Drake noted discussions can be opened to public comment at any time. 

Mr. Rabbitt indicated that what a Commission did in the past, if it is not proper, does not set precedent to be carried forward.  He has been taught that over many years that it is well-established law that alternates should not participate in discussions of an Application, unless needed as a voting member; an Applicant has the right to be heard and judged by the six seated members, not 7, 8 or 9, despite what commissions have done in the past.  Commissioner Drake added that counsel has always allowed alternates to speak.  Chairman Rice noted this issue comes up periodically and the Commission would like more break down.  Mr. Rabbitt noted that if an application were denied, and more than 6 people spoke, the applicant could challenge that their due process was violated jeopardizing the decision.  Chairman Rice noted the Fuller court case where “unseated members of a land use agency are not precluded from participating in the public hearing”.  Mr. Rabbitt explained that would be as a commission member where during the public hearing process the public can ask questions - even though a commission member is not seated, they can ask a question just like the public because once the public hearing closes, if a commissioner recused themselves and an alternate is seated, you want the alternate to be prepared with their questions having been answered.  Mr. Rabbitt confirmed that if an applicant comes before the Commission to present their application, that is not a public hearing and an unseated alternate cannot ask questions in that case.  Commissioner Drake felt that members are voted onto the board and should be allowed to participate in the discussion and that it was not defined clearly in the memo provided.  Mr. Rabbitt noted the merits of this meeting’s referral were discussed by the 6 seated members and he will seek additional clarity from Town Counsel.

Chairman Rice requested more clarification from the Town Attorney as soon as possible specifically identifying when an unseated alternate can participate and when they cannot.  The Commissioners agreed that clear lines are needed.  Commissioner Leavitt-Smith discussed that alternates are part of the Commission, and 6 members vote, but why not use the alternates’ expertise.  Commissioner Drake indicated he was giving his time as a volunteer to participate in discussions.  Chairman Rice noted alternates have to listen to the discussion to be ready to be seated and vote.  Commissioner Drake believed that the Chair had the ability to conduct a meeting the way the Chair sees fit. 

Chairman Rice recalled at Land Use training that the presenters began the meeting saying that if an application is denied and appealed, the appeal is generally not successful based on the application’s merits but is successful based on procedural mistakes made during deliberations, and he would not want to be forced into a decision contrary to the law and needs more clarification.  Commissioners Locandro came on the board as an alternate and when the opportunity arose for him to become a full member, he took it as a much deeper commitment to serve the community; members are here because they wanted to be elected or appointed.  Chairman Rice again requested more clarity before 5/10/16. 

Mr. Rabbitt asked how many have participated as Commissioners in a site walk?  Five members responded affirmatively.  Mr. Rabbitt reviewed that the purpose of a site walk is for the Commission to gain knowledge or bearings on the land associated with the application under consideration.  He indicated the site walk is done primarily in silence with no discussions with fellow members, the applicant’s engineer, architect, etc., Town Staff, or the public; you are there to better understand the plans with boots on the ground.  It is difficult to keep a public record of discussions; an appropriate question would be to ask for a location on the map or where drainage is located and where it goes.  The developer should also not talk with public attendees and permission must be obtained from the land owner/developer for the public to attend, and if they don’t agree, that becomes difficult to explain to the public, but Mr. Rabbitt confirmed that will be explained to the public.  Commissioner Beum expressed concern that the public be treated with respect and that things are explained to them.  Mr. Rabbitt indicated if it is not possible to do the site walk as a Commission, Staff will walk the property with a non-quorum of members, if on the application the applicant has granted permission to Staff to walk the property – if someone did not allow evaluation of the property, that could be grounds for denial.  Mr. Rabbitt indicated as part of the application packet, Staff plans to add to the paperwork a form for Staff’s permission to walk the property, and they would notify the owner before doing so.  As a professional, Mr. Rabbitt would not review a project unless he has seen the site.

VI.       ADJOURNMENT

Commissioner Kulakowski made a motion to adjourn the meeting at 8:22 p.m.

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