Planning Commission Minutes 06/28/2016
PLANNING COMMISSION
JUNE 28, 2016
REGULAR MEETING
I. CALL TO ORDER
Chairman William Rice opened the Regular Meeting of the Planning Commission at 7:05 p.m. in the Main Meeting Room at the Town Offices. Also present were Jamie Rabbit, Director of Planning and Community Development; Janis Prifti, Commission Clerk; and other interested parties.
1. Pledge of Allegiance
Chairman Rice led attendees in the Pledge of Allegiance.
II. ROLL CALL
Commission members in attendance were: William Rice, Holly Beum, Alan Needham, Erin Leavitt-Smith, and Ron Locandro, Jr. Chairman Rice reviewed that the Planning Commission has 6 regular elected members and 3 alternates; the Bylaws state a minimum of 4 Commissioners must be present and 5 Commissioners were present.
1. Appointment of Alternates
The 5 Commissioners present provided a quorum and no alternates were seated.
III. APPROVAL OF MINUTES of June 14, 2016
On Line 113, the name “Lou” is corrected to “Lewis”.
On Line 118, following the word “extension”, the words “on May 10, 2016” are inserted.
On Line 119, following the word “extension”, the words “on June 10, 2016” are inserted.
Chairman Rice made a motion to approve the June 14, 2016 Minutes, as amended.
Commissioner Locandro seconded the motion, and it was passed unanimously.
IV. APPLICATIONS:
1. Old Business
a. Public Hearing(s)
i. 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(public hearing continued to 06/28/2016; public hearing must close by 8/17/2016)
b. Application (discussion and possible action on):
ii. 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. (public hearing continued to 06/28/2016; public hearing must close by 08/17/2016)
Chairman Rice noted this is a continuing open Public Hearing for Application #16-01 and read it into the record. Chairman Rice was in receipt of a 06/23/2016 letter from the Applicant’s Attorney, Lewis K. Wise, and read: “Dear Commission Members: As explained in my letter to the Commission dated June 10, 2016, the applicant is in the process of making significant modifications in the subdivision plans which are the subject of this application in response to the many issues raised by the town staff. These modifications will not be completed in time for the meeting on June 28, 2016. Moreover, it is doubtful that there will be enough time to complete these plans, have them reviewed by town staff and meet again with town staff before the Commission’s following meeting on July 12, 2016. As a consequence, the applicant respectfully requests that the hearing be continued from June 28, 2016 to July 26, 2016. Because of the applicant’s previous comments to extend the time within which the hearing must be closed, the deadline to close the hearing is August 17, 2016.” Mr. Rabbitt commented regarding the extension request that under State Statute there are 35 days to close the Hearing and the Applicant has consented to an additional 65 days to mid-August, as referenced in Mr. Wise’s letter. Mr. Rabbitt continued that it would be Staff’s opinion, given the nature of this Application and the complicated aspects associated with some of the development of these lots, that the Commission continue the Public Hearing to its July 26, 2016 regularly scheduled meeting. Commissioner Leavitt-Smith asked what the procedure would be if a decision is not made at the July 26, 2016 meeting? Mr. Rabbitt clarified once a Hearing is closed the Commission has 65 days to make a decision based on the public record, as submitted by the Applicant and testified by the public up to the date the Hearing is closed; once the Hearing is closed the Commission still has access to Staff – Engineering, Legal, Planning, etc. Mr. Rabbitt added that Staff has explained to the Applicant that the Commission does not have a regularly scheduled meeting in August; it is likely the Hearing would close in July, unless a Special Meeting is scheduled. Commissioner Locandro asked about the number of days in the total allotment of 100 days to that meeting? Mr. Rabbitt responded 21 days; the Applicant consented to 65 days of extensions for the Public Hearing and if closed potentially extends the decision time; the July 26, 2016 date provides sufficient time to close within the statutory timeframe with the extensions. Commissioner Beum believed the public attendees should be allowed to speak. Commissioner Needham noted that they could wait until the other side is present in order to hear their comments; he suggested they set up a method of communication to keep interested members of the public informed; Chairman Rice noted a visitor to the Planning Department posted information on public media; and Commissioner Beum added it was also in the paper. Chairman Rice agreed that a lot of respect be shown the public and invited attendees to speak at the podium.
Brian Karpe, an attorney, of 10 Wheeler Road, Simsbury, pointed out that he predicted at the last meeting this would keep continuing; it is a common tactic that he has also used to get things into the court when he didn’t want particular people to hear the arguments; and it will be interesting to see what happens next time. He believed they want to put in a big development because if they wanted affordable housing, they could put in 3-4 workforce affordable houses so 100% of the development is workforce affordable housing to help the Town. He believed they want to bully the Commission and Town into approval. He asked what the next meeting date would be? Chairman Rice noted the next regularly scheduled meeting is July 12, 2016, but the request for extension is to the second regularly scheduled meeting on July 26, 2016.
Richard Case, Attorney from Avon representing Tallwood properties, asked that the Applicant be requested to produce all of their reports, plans, etc. at least 7 but closer to 10 days prior so that Staff and their experts have an opportunity for review; if the material appears the day before, they would not have that opportunity. Chairman Rice noted that the Applicant is allowed to deliver testimony the day of the meeting, but a request will be made to the Applicant to provide the material at least 7 days before the 07/26/2016 meeting.
Cameron Cantelmo of 46 Sunset Hill Road, Simsbury, commented it was ingenious to put 23 houses on a really small lot using the guise of affordable housing as a veil with only 4 of those houses actually affordable. While he had not read the entire State law, he felt there should be an exception to affordable housing if a certain percentage of the houses are not affordable; if all 23 houses were affordable, people would likely be less upset about it, but having so many of the houses priced even higher than surrounding properties is ridiculous and a slight to the Simsbury community. Commissioner Beum commented that this law is written at the State level and both the Town’s Representative and State Senator are up for election this fall and it is within their power to do something about this law. The Commissioners discussed what to include in a motion
Commissioner Needham made a motion to accept the Applicant’s request for an extension and keep the Public Hearing open to July 26, 2016, in the Main Meeting Room at Simsbury Town Hall at 7:00 p.m.
Commissioner Locandro seconded the motion,
Regarding the meeting location, Mr. Rabbitt indicated they are looking into a larger venue.
Commissioner Leavitt-Smith noted Attorney Case’s request that the Applicant submit material 7-10 days ahead of the meeting, and if the Hearing date arrives and material has not been submitted for review, that the experts be provided opportunity for review and for the public to be able to refute and have time for review. Mr. Rabbitt clarified the understanding that the Applicant has the ability to submit information up to the moment the Hearing is closed; if the public or their consultants are present, they are allowed to meet in the room and react to the information submitted that evening up until the Hearing is closed. Mr. Rabbitt has previously been involved with applications where applicants have submitted information very late in the evening; e.g. under appeal a consultant’s argument that their engineer was not present for an abutter and the Judge said they had the opportunity to have their team available at that hearing to listen to and review the information and submit comments. Mr. Rabbit acknowledged it is a difficult process but courts are clear that information can be submitted and reacted to up to the close of the Hearing, and once the Hearing is closed, the Commission only has access to Staff. Commissioner Leavitt-Smith asked at the 07/26/2016 meeting if the Commission could keep the Hearing open for a week for experts to review the material? Mr. Rabbitt responded that could be done if a Special Meeting were scheduled. Chairman Rice added that the time runs out on 08/17/2016.
The motion was passed with 4 in favor and 1 abstention.
2. New Business
a. Receipt of New Applications
i. None
b. Referrals
i. CGS 8-3a Referral to the Zoning Commission on Zoning Commission Application #16-32 of Cumberland Farms, Inc., Applicant; Joseph P. Williams, Esq., Shipman & Goodwin LLP, Agent; for Text Amendments to the Simsbury Zoning Regulations in Article Ten, Section C.3.h, and Article Ten, Section C.7.d, to permit owners of certain gasoline filling stations to replace their existing, manually-updated price signs set atop the gas pumps with identically sized LED pump toppers. (received 06/20/2016; public hearing set for 07/25/2016)
Chairman Rice read the 8-3a Referral into the record. Mr. Rabbitt clarified this is a referral from Zoning under 8-3a for a finding of consistency with the POCD.
Attorney Joe Williams, representing the Applicant for all of their land use applications in the State, believed Application #16-32 complies with the Town Plan of Conservation and Development (POCD). Attorney Williams described Cumberland Farms as a great family-owned company based in Massachusetts with strong New England roots, believes in being a good neighbor, and in not causing unwanted impacts in the towns where they operate. Attorney Williams noted the recently opened 155 Hopmeadow Street operation uses their standard New England colonial farmhouse style architecture, not typical of convenience stores. He reviewed that the small signs on top of the pumps provide the price for each grade and are strictly regulated by the State Department of Consumer Protection; historically, the State regulates the size of the sign and numbers under Section 16a-15-9 and allowed black numbers on a white background or white numbers on a black background – he provided a photo example. Attorney Williams indicated that last October the Department of Consumer Protection amended their regulation adding that the price numbers can be LED with numbering in white, red, green, or yellow. He added that the Applicant has been changing over manual pump topper signs throughout New England, and they have been generally well received. Following discussions with Mr. Rabbitt, Attorney Williams indicated the proposed text amendment to Zoning makes the numbering white to be less noticeable on the pump topper; a key portion of text is on the 2nd page for Article Ten, Section C, 3.h. where limitations, include: 1) that this regulation does not and they have no desire to make LED signs of any or every kind allowable in Simsbury, and the reason he provided background on the LED pump toppers is that they are not a sign from the perspective of drawing people into the site, as there is a visible free-standing digital sign that can be updated from headquarters at the front of the site advertising to people driving by. However, he explained that the pump toppers currently are updated manually, and the LED pump toppers would allow more accurate, efficient updates from a headquarters computer to match the digital free-standing sign in front further modernizing the business; also, it improves safety for staff who manually change pump topper prices where people drive up. He added the State has allowed this change and the Applicant is trying to update locations throughout the State in a limited and unobtrusive a manner. Attorney Williams indicated their suggested limitations for this regulation, include: 1) it can only happen in the Planned Area Development (PAD) Zone, which would be limited to commercial areas for less impact on the Town; 2) the signs have to comply with State regulations, and are only for pump price toppers and no other kinds of signs, and their size is strictly regulated at no more than 2.25 sq. ft. of surface area with the box at 2.16; 3) it has to be affixed to the gas pump field dispenser; 4) the field dispenser has to be perpendicular to the road, or sideways to the road to limit visibility from the street. Commissioner Beum felt perpendicular things are visible from the road. Attorney Williams believed they are somewhat visible if you have the angle, but did not recommend taking vision off of driving. Commissioner Beum noted a lot of subjective wording with a lot of changes to intensity since she launched LEDs in 1986 and no measurement of intensity; because some LED lights intensely burn into the retina, she asked if there were any objective measurements of intensity. Attorney Williams responded there were numerical settings on the machine and provided a sample photo to the Commissioners; and he noted language added to the subsection that it does not create glare because brightness and intensity can be adjusted, which the Applicant has done in other towns; he believed their default setting was 6 on a scale of 1-10. Attorney Williams believed this Application to be consistent with the POCD noting a section on Economic Development which states goals on Pg. 110 to retain, expand and recruit businesses; encourage the Town to establish positive relationships with local businesses; and promote policies that will lead to the expansion of business; he felt the general language of the POCD allows a good successful business to modernize its operation to comply with State law and be safer, consistent with the overall Zoning scheme and with the POCD. Attorney Williams asked that the Commission not give a direct disapproval recommendation to the Zoning Commission because by State law they can only pass the Zoning Regulation by a 2/3 vote of all Commission members, which puts a thumb on the scale. However, Commissioner Needham clarified the Zoning Commission has 6 members so 2/3 or a majority are the same thing.
Mr. Rabbitt noted Mr. Williams statement this is a requirement, and clarified that under Consumer Protection while prices are required to be on the pump, State law does not require those pump prices to be digital. Mr. Rabbitt provided the Commissioners with photos emailed to him showing the Applicant’s different LED price toppers with potential visual distraction; and normal existing price toppers showing no potential visual distraction. Commissioner Needham commented that if the digital signs can be dialed down, the Town would count on the Applicant to dial it down and keep it down if the Town asks them to. Commissioner Needham expressed concern about two conditions placed on the original approval of the Applicant’s operation; one condition was that there be no trigger locks on the gas pumps and there were none when the operation opened, but after the CO was issued they appeared, and were then removed after complaints; and another condition was the hours were from 5 a.m. to midnight, but there were instances when the operation was open beyond those hours; so those issues cause apprehension regarding LED pump toppers being dialed down if requested. Commissioner Needham did not like text amendments because if one is allowed, it could be difficult to say no in the future to similar applications; and he did not believe it to be consistent with the PAD. Chairman Rice noted in the first proposed text amendment it states, “except that in the Planned Area Development Zone only” and that there is more than one PAD in Simsbury. Chairman Rice asked if the intent was to identify a single PAD or have this text amendment apply to all PADs? Attorney Williams responded it was meant to apply to all in that one Zone as he did not know there was more than one PAD. Commissioner Needham indicated the site was approved as a PAD and included apartments and he would like to know the status of those apartments so the Town gets what it approved.
Attorney Williams clarified that the State regulation does not require LED and provided the State section of the regulation allowing white on black or black on white LEDs and noted the Applicant’s desire to modernize the business. He believed the trigger lock and hours issues were likely a local oversight given the responsible kind of company they are. Regarding the LEDs, he confirmed the adjustment has to be made at the manufacturer and cannot be changed locally, and whatever level is agreed to would be enforceable and they would also agree to put a darkening film on the box. He did not know about the status of the apartments as the Applicant does not own the overall site and does not develop apartments. Chairman Rice expressed the opposite feeling regarding other PADs where Garden Homes is building all of the residential and none of the commercial with the Town being somewhat taken advantage of. Chairman Rice continued that looking at the POCD there is an area of inconsistency in the chapter, “What We Want to Protect – Community Character” which contains the term “sense of place” that is difficult to quantify but is very clear when it is seen; LED lights are not natural and consistent with much of the geography and architecture of Simsbury and would not contribute to a “sense of place”; also the POCD refers to “Guidelines for Community Design” which is a Design Review Board document that contains a substantial chapter on signage and discusses reinforcement of Zoning Regulations for signage, no signs emitting their own light, different colors that are in concert with the character of the Town; and it was his opinion that LED lights do not fit in with the POCD. Commissioner Needham amplified that Simsbury does not have any neon lights because they do not fit in with Town efforts to maintain a semi-rural character. Commissioner Locandro suggested looking at the LEDs in Granby Center for an example of what they look like. Commissioner Needham felt that if it was unsafe for personnel to change pump topper prices, it would also be unsafe for patrons to stand and pump gas. Commissioner Leavitt-Smith appreciated a business being able to have more efficient operations. Commissioner Beum indicated from her work experience that it does not take much time to change prices, but it could be more important for consistency; however, LEDs are far more extreme than neon and are being marketed as paramilitary equipment that can stun and disable people with brightness, so with no objective quantification it could create a danger to vehicular traffic. She noted under proposed language for Zoning Sign Prohibitions it says, “signs are prohibited if they have flashing, rotating or other forms of intermittent lighting”, but “the prohibitions in this subsection shall not apply to the price display signs”, meaning they could eventually use the signs for advertising. Commissioner Locandro added that is being done in Granby and it would have been better to have included other technologies in the State regulation. Attorney Williams responded they would not use the lights to stun anyone or to advertise, and the reason for 7.d. is it prohibits a sign that allows light to project through the face, as described in h. above it. He agreed that generally most towns have allowed the Applicant to have LED light toppers to change the price every few seconds between Smart Pay’s 10 cents off every gallon if the phone app is used and regular, but flashing/rotating is not proposed for Simsbury and the Applicant would likely agree to changing this language if Zoning approves the Application, and he appreciated having it brought to his attention.
Mr. Rabbitt reviewed this is a text amendment general to property in the community and is not a text amendment for the Applicant; so Cumberland Farms is the Applicant, but ownership changes and properties develop over time and contract zoning is illegal in Connecticut, which can make some aspects of Zoning enforcement difficult; ultimately, Zoning’s power only comes from the court system and if a landowner chooses to intensify the lighting it is a notice of violation and fine; and ultimately, enforcement needs to be ordered by a judge through expensive litigation and in general relates to the enforcement process for any regulatory change for any business. Commissioner Locandro asked if this is only for a PAD and if another gas station not in a PAD wanted to change their pump lights to LED that it would not apply; the POCD talks about being business friendly, but the only gas station on a PAD is Cumberland Farms? Mr. Rabbitt noted that while that is currently true, it was suggested to Attorney Williams to make the proposed changes modest in nature and limited in scope so it would not be generally applied to the rest of the community; however, the concern is another gas station applicant could ask if LEDs are good for Cumberland Farms, why aren’t they good for them? Attorney Williams responded the Zoning Commission has to make a legislative determination to amend the text or amend a Zone on property and the courts are clear no one can claim precedent, so even if an applicant said it was not fair because it was allowed for a PAD, the Zoning Commission cannot be forced or convinced it has to follow precedent, which has been his experience as an applicant. Mr. Rabbitt noted while statements were made by Mr. Williams regarding business friendly and economic development being consistent with the POCD, there are more references in the POCD to developing a sense of place and what Simsbury is and to communities that aspire to be as nice as Simsbury, and Simsbury aspiring to be more like Chester and Essex; the POCD does not make any references to aspiring to the look or feel of the Berlin Turnpike; and some of what the POCD relates to regarding nomenclature and architecture is signage.
Mr. Rabbitt continued that he respected Mr. Williams representing his client applying for a sign not allowed in the regulations with fair reasons for his stance and claim, and ultimately the Planning Commission has to make a recommendation to Zoning with reference to 8-3a. The Commissioners discussed language and intent for the motion.
Commissioner Needham made a motion finding the 8-3a Referral from the Zoning Commission calling for a Text Amendment on the Cumberland Farms property is not consistent with the Plan of Conservation of Development, in particular with the references to maintaining the character of the community and sense of place; also, the POCD references the Design Review Board’s document, “Guidelines for Community Design” that makes reference to acceptable types of signage and lighting of the signs, which is inconsistent with this referral, and specific reference on Page 48 of the POCD to “Goals, Policies and Objectives, #3. Policy – Continue to include the Design Review Board in local land use issues and continue to implement the ‘Guidelines for Community Design’.”
Commissioner Beum seconded the motion, and it was passed unanimously.
V. GENERAL COMMISSION BUSINESS
1. Plan of Conservation and Development Update – Request for Qualifications
Mr. Rabbitt advised as of last Friday, 4 responses to the RFQ have been received ranging in cost from $50K to $120K, which is within the $130K budgetary item. He would like to work with a subgroup of the Planning Commission, including the Chairman, and a representative of the Zoning Commission - perhaps Chairman Ryan, to review the proposals, give Staff some direction; and potentially interview 2 or 3 of the respondents. He felt it was important to involve the Zoning Commission early on as they are the implementing agency, and the number of Planning Commissioners involved would be at the Chairman’s discretion. Mr. Rabbitt indicated the reviews could potentially begin next week; Chairman Rice will send out a note to the members asking for a response of their interest – he planned to involve himself and one other member.
Mr. Rabbitt planned to send out the digitally-received proposals to all members for quick comment; the Commissioners noted there would be an opportunity to discuss the proposals at the first regularly scheduled meeting in July given that the 80 Climax Road project is moved to the last July meeting. Regarding potential Saturday workshops for the POCD, which occurred frequently last time, Mr. Rabbitt responded the November 2017 deadline as they must have a final draft 65 days before in June/July, which leaves 11 months requiring public outreach to be multiple and early; social media and Survey Monkey are available to solicit input over a 30-day period at a cost of about $2600 and providing the ability to keep the box from being loaded by any one respondent – this method has been used successfully in small communities with a potentially significant number of responses. He noted combining online input with feedback from physical meetings where conversation is free flowing and informative, should result in a comprehensive POCD update, including discussion of housing mix.
Commissioner Leavitt-Smith felt the current POCD was a bit too general and repetitive. Commissioner Needham recalled a major issue for the current POCD was metrics; Mr. Rabbitt noted metrics should be built in to provide the ability to go back and see if objectives were accomplished and how they are working in order to target and update general principles. Commissioner Needham indicated a need to use pictures, e.g. picturing Simsbury as a semi-rural town and what an area’s density looks like; Mr. Rabbitt noted on pages 50-100 there is general discussion of form based code, which is a general guiding principal where it may be appropriate to go to a more detailed level. Commissioner Beum asked if a Facebook page would be a good way to get input; Mr. Rabbitt responded there could be an immediate link on the first page of the Town website to a separate POCD web page with the survey, link to Facebook, status, etc. – there is $130K budgeted for the POCD, with potential to use some resources targeting a specific area as the update develops. Mr. Rabbitt noted people love to have an actual physical product.
Commissioner Needham made a motion giving Chairman Rice authority to appoint soon a sitting member of the Planning Commission, along with himself, to the vetting committee for the POCD consultant for 2016.
Commissioner Locandro seconded the motion, and it was passed unanimously.
VI. ADJOURNMENT
Commissioner Beum made a motion to adjourn the meeting at 8:30 p.m.
Commissioner Levitt-Smith seconded the motion.
Chairman Rice expressed thanks to the members for being a great Commission.
The motion was passed unanimously.