THESE MINUTES ARE PRESENTED IN DRAFT FORM AND HAVE NOT BEEN FORMALLY APPROVED BY THE ENFIELD PLANNING AND ZONING COMMISSIONOFFICIAL COPIES OF MINUTES, WHEN APPROVED, CAN BE OBTAINED FROM THE TOWN CLERK OR PLANNING OFFICE.
ENFIELD PLANNING AND ZONING COMMISSIONMINUTES OF A REGULAR MEETINGSEPTEMBER 18, 2008
A Regular Meeting of the Enfield Planning and Zoning Commission was held on Thursday, September 18, 2008 in the Council Chambers, Enfield Town Hall, 820 Enfield Street, Enfield, Connecticut. Chairman Charles Duren called the meeting to order at 7:30 p.m.
PRESENT: Charles Duren, Chairman Elizabeth Ballard Peter Falk James Hickey, Jr. Kathleen Sarno Michael Dumont, Alternate Ronald Gregory, Alternate Charles Ladd, Alternate
ALSO PRESENT: José Giner, AICP, Director of Planning
Chairman Duren designated Ronald Gregory and Charles Ladd as the voting alternates this evening.
MINUTES
Commissioner Falk made a motion, seconded by Commissioner Hickey, to approve the Minutes of September 4, 2008. Commissioner Ladd made an amendment to the Minutes on page three, second paragraph. The first sentence should read “Mr. Giner gave an update on the citizen feedback survey.” The Minutes, as amended, were approved by a 7 – 0 – 0 vote.
STAFF COMMENTS
a. Director of Planning
Mr. Giner reminded the Commission in October the meetings are scheduled for October 9 and 23 to coincide with the Inland Wetlands and Water Courses’ schedule.
Mr. Giner reported on Saturday, November 1, there is a land use academy at Northeast Utilities. He asked that Commission members inform him if they would like to attend.
Mr. Giner gave an update on the Plan of Conservation and Development. A consultant has been chosen and notified of their selection. They are working on a draft scope of services which will be received on Monday. Commissioner Falk asked if the Plan is on schedule. Mr. Giner stated the consultant will give a proposed schedule and some of the scheduling will depend on how soon the Council gets back to the consultant. The anticipated time schedule is for the finished draft form to be completed by July or August, 2009.
Chairman Duren asked that Mr. Giner make sure the consultant gets the Enfield Forum for the Future report. He would like to make sure that Thompsonville is included more than it is this year. Mr. Giner stated he will be sending the consultant all reports and studies that are available.
Chairman Duren brought up the proliferation of A-frame signs around the town. He asked if there has been a moratorium declared by someone or is it going to be do as we say and not as we do. Commissioner Ladd noted three businesses that had A-frame signs. Chairman Duren noted at one time the Commission had a proposal to allow so many A-frame signs but the applicant didn’t pursue the matter. He stated there are A-frame signs all over town. Mr. Giner will look into this.
Chairman Duren reminded the Commission about the identification photographs. Mr. Giner showed a sample of the badge that will be available and the two types of holders available.
Chairman Duren stated there is the Connecticut Trust for Preservation being held here at Town Hall, Thursday, October 2, 2008 from 5:30 p.m. to 7:30 p.m. in the Enfield Room. If any of the Commission is interested in attending, they should inform Mr. Giner.
Chairman Duren asked about PH#2644 from Frank Troiano. Mr. Giner stated they requested this be heard on October 23, 2008. Mr. Giner stated the applicant agreed to the extension and this gives the Commission an opportunity to review the Town Attorney’s memo.
b. Henry Dutcher, Library Director regarding ETV Broadcasts.
Mr. Henry Dutcher stated he has been appearing before the various boards and commissions that are being filmed to give them a little bit of information to get better quality of ETV broadcasts. The most important thing is the audio. They are aware of the audio and the audio is the best they are going to get at the moment. They have managed to get rid of the feedback. If they take any of the microphones and move them, they start screeching. Unfortunately, there is not much more that they can do regarding the present audio. Mr. Dutcher noted the sound on the television tends to be a little better.
Mr. Dutcher stated the positive thing is the Department of Public Utilities Control has a new grant system they are administering. They have money set aside and they are putting out grants to channels like ETV. They will fund certain things. The Town of Enfield has put in a grant request of over $30,000 to completely strip out the audio system in the Council Chambers and redo it. If the grant is received, they hope to solve the audio problems.
Mr. Dutcher asked that the Commission keep ETV in mind. The Commission now has a broader audience. There are hundreds or thousands of other people watching the Commission’s actions.
Mr. Dutcher asked that Commission members speak toward the microphone. When they do get a new audio system, Commission members will all have individual microphones and this will solve a great deal of the problems. Mr. Dutcher asked that Commission members not move the microphones because this may create additional audio problems.
Mr. Dutcher stated Commission members must have a microphone or ETV will not pick them up. If people in the audience are trying to speak, they will not be heard. They need to be at a microphone. Mr. Dutcher noted the portable microphone that is available for use. The important thing is to be aware of that ahead of time.
Mr. Dutcher discussed people receiving awards and that the Commission keep in mind they have an audience. Make sure that the people are facing the camera.
Mr. Dutcher discussed presentations and noted ETV has the capability of electronically integrating presentations. The home audience will not see the presentation made by the applicants to the Commission tonight because there is not enough definition. He thought it would be incumbent upon the Commission to talk about and decide whether they want to request/require applicants to submit presentations electronically; i.e. a jpg file that can be put into the system. Chairman Duren stated the Commission could ask if applicants would like to do it that way. He was thinking of time restrictions. Commissioner Ladd brought up the smaller presentations. Mr. Dutcher stated it will be up to the Commission on how to work this out but he asked that the Commission keep in mind that they have that capability. It is necessary to have power point and other presentations ahead of time or approximately two days before. Chairman Duren stated he thinks it’s great and it’s something that can be offered to applicants but he wouldn’t want to hold them to it. He thought of the smaller applications. Some discussion followed on how to make these presentations.
Mr. Dutcher stated there are three cameras and if they cannot see the Commission or the guest, they cannot film them. The town has earmarked money for video and they will be putting in video presentation systems into this room. They are working out the details. The video will be able to be seen by the audience and the Commission. With power point and that type of thing, they won’t need to be putting screens up. It will go through the system and come out on a screen for the Commission.
Mr. Dutcher stated if the Commission is going to have a guest, they can do an overlay with the name of the guest. They ask for it in legible writing. Chairman Duren stated Mr. Giner can give the names of the attorneys before hand to assist the public. Mr. Dutcher stated this one is pretty easy to do as long as they know the names.
Chairman Duren discussed the availability of the DVD of the meeting and how it has been helpful to the three Commissioners that were not present at a recent meeting. Mr. Dutcher stated for the audience at home they at the library will catalog this and put it in the library collection and people can check it out. This takes a little time or a couple of days to process. Tonight’s meeting will be available early next week for people to take home and view it if they wish.
Questions from the Commission followed Mr. Dutcher’s presentation. In response to a question from Commissioner Ballard about the time schedule, Mr. Dutcher stated they cannot schedule the meeting until they know the length of the meeting. They will put the ETV schedule on the town web site so that the Commission doesn’t have to wait for it to come around on the slides. They still will only be a day or two ahead on the schedule at any given time. Mr. Dutcher stated ETV is broadcasting the meeting live at this time.
Chairman Duren asked if the other land use boards are going to be filmed. Mr. Dutcher stated he is only budgeted to do the Board of Education, the Council and Planning and Zoning.
CORRESPONDENCE
Chairman Duren noted the Commission received a packet of Capitol Region information. Correspondence also includes the Zoning Board of Appeals Notice of Action and the Inland Wetlands and Watercourses Notice of Action.
COMMISSIONERS’ CORRESPONDENCE
Chairman Duren noted a conference to be held on September 18 sponsored by Northeast Utilities.
BOND RELEASES
a. SPR#1377 – request for release of Engineering Bond in the amount of $23,100 for modification of previously approved parking and landscaping layout at the AAA offices at 109 Elm Street, zoned BG, Map 43, Lot 7, AAA-Allied Group, LLC, Applicant/Owner.
Chairman Duren noted receipt of a memo from John Cabibbo dated July 6, 2007 recommending release.
Commissioner Falk made a motion, seconded by Commissioner Ballard, to release the engineering bond in the amount of $23,100 for SPR#1377, AAA Offices at 109 Elm Street.
Commissioner Hickey stated it is a little confusing because it says the engineering comments have been addressed in the memo dated July 6, 2007 and there is a memo from the Zoning Enforcement Officer asking some questions. He asked if this has been approved by Engineering. Mr. Giner stated Virginia Higley had not seen the memo from John dated a year ago and it was resent. Mr. Giner is comfortable releasing the engineering bond.
The motion was approved by a 7 – 0 – 0 vote with Alternates Gregory and Ladd voting.
b. PH#2198 – Request for release of engineering maintenance bonds for Clinton and Bush Lanes in the amounts of $48,817 and $26,475 respectively.
Mr. Giner spoke to Engineering and they requested this bond release be tabled until the next meeting as they wanted to do one final inspection. The Council has accepted the roads. Once the roads are accepted, the Commission holds the maintenance bond. After the Council accepted the road on July 2, 2007, the Commission did release the main bond but held back fifteen percent as a maintenance bond to make sure the project is completed.
Commissioner Hickey made a motion, seconded by Commissioner Sarno, to table the request for release of the bond contained in PH#2198 until the Commission’s next meeting. The motion was approved by a 7 – 0 – 0 vote with Alternates Gregory and Ladd voting.
PUBLIC HEARINGS – CONTINUED FROM SEPTEMBER 4, 2008
a. PH#2651 – Special Use Permit to permit a three-season sunroom on an existing deck at 85 Wynwood Drive in an existing planned residential development located in an R-33 district, Map 60, Lot 265. Nick Grillo, Applicant/Frank DeJesu, Owner. (Must close by October 9.)
Nick Grillo of Paradise Sunrooms, 110 Washington Avenue, North Haven, Connecticut stated he is before this Commission to see if they can get approval according to Planning and Zoning rules to enclose an existing deck with a three-season sunroom. There are litigations involved which Mr. Giner is aware of but which have nothing to do with this Commission. Their thought was to present it to the Commission to see if they would accept it so that they can go to the next step. Mr. Grillo stated Eleanor DeJesu wanted to be here but has been ill and unable to attend.
Mr. Grillo stated there are existing decks of the exact size, in this case 8’ x 12’, which they would bring to code before they enclose it. The proposal is a three-season sunroom which is detachable and can be moved. The owner will take all responsibility for its upkeep. She is putting it under her homeowner’s policy. She is protected as well as the Association should any harm be done to it or to the existing building.
Commissioner Falk assumes when this development was approved, this was not allowed and that is why Mr. Grillo is here. Mr. Grillo stated he came here because it had to come before the Planning and Zoning Commission to see if it was acceptable. This is a condominium project and it is one individual unit. Mr. Grillo stated it is Wynwood and Eleanor’s unit is #85. Most of them have decks or approximately two-thirds of the condo owners. Mr. Grillo stated they are building steps, stairs and landings to code. As far as its use, it is a sunroom where you can sit and feel like you are outside but you are inside. It improves the quality of living.
Commissioner Hickey asked why this is listed as a special permit for an enclosed sunroom. Mr. Giner stated with anything that has been approved as a planned residential development, the Commission approves a set of architectural plans with the plans. Normally, the options for the residents are shown on these plans. If it is not shown as an option, then they are not part of the approved plans and Mr. Giner has always taken the position that any changes to that require an amendment to their special use permit.
Commissioner Hickey asked if it should be a site plan. Mr. Giner stated not unless the Commission wanted to make it one. He discussed other condominium projects where a certain style has been approved and everyone can come in for a building permit for the option listed.
Commissioner Sarno stated in her experience on this board this is the first time the request has come from a condominium complex. She noted condominiums are not the same as planned residential developments. In a planned community, the property owner takes care of their decks and their roofs and the yards they have. In most condominiums such as Wynwood, the Association takes care of those. In her condominium complex, if anyone wants to extend their decks, they would come in front of the board and the board either approves it or not. To her knowledge, they don’t come to Planning and Zoning to get any such permits. She doesn’t know if it is different with a sunroom.
Mr. Giner stated for the Commission, it is a land use. From a land use perspective, any changes need to come back to the Commission. If you came in with a plan and met the regulations, you got approved. How you drew up your condominium plan for maintenance was up to the individual development. If the condo document doesn’t show the option requested, the applicants would be told that they had to come back before the Commission.
Commissioner Sarno asked the applicant if the sunroom has been approved by their Association. Mr. Grillo stated he says yes and the Association says no.
Commissioner Sarno asked if the Commission approves this, are they overriding the Association. Chairman Duren stated the Commission has the town attorney’s opinion. Their opinion is that is for them to work out. The Commission’s charge is whether or not it meets zoning requirements. Mr. Grillo stated that is what he has been told and that is why he is here.
Commissioner Ladd asked if this is a temporary structure. Mr. Grillo stated it is permanent but it is detachable. You can remove it as opposed to an addition on a home. He has only detached such a sunroom once. Commissioner Ladd stated it would be similar to a screened house on the porch. Mr. Grillo stated exactly except that it has windows with screens.
Commissioner Sarno asked if this would be the only sunroom in the complex. Mr. Grillo confirmed that to be the case. He stated he has been trying to get this done for a year.
Chairman Duren opened this hearing to the audience.
Attorney Ann Marie Alexander, 11 South Road, Somers, stated she represents the Board of Directors of Wynwood Condominium Association. What the Commission has before them is a copy of the pertinent section of the condominium documents as they have been recorded in the land records in the Town of Enfield. Attorney Alexander stated Commissioner Sarno raised an interesting question about whether or not this is allowed by the current condominium document. The Commission is aware there has been a dispute over whether a recent amendment was passed at two meetings, one in February which was voted down by the homeowners, and one in May which was also voted down by the unit owners. The Commission has a copy of the amendments in their meeting packet. Whether the Commission chooses to review them is up to the Commission. Whether to forward them to the Town Attorney is also up to the Commission.
Attorney Alexander stated the amendment the Commission has in their packet was from the special meeting that was held in May. The Commission will see that there is a proposed amendment to the declaration and a proposed amendment to the bylaws. In the proposed amendment, it says one cannot pass without the other. In the declaration amendment, you needed a sixty-seven percent majority vote of the unit owners to pass and it did not receive that vote. The amendment to the bylaws coincided with the amendment to the declaration because the board’s main concern here and the unit owners’ main concern here occurred during the annual meeting. During that meeting the unit owners were concerned about who is going to insure deck, who is going to maintain the deck, who is going to replace the deck and who is going to repair the deck. The deck is currently a limited common element and, as such, it belongs to all the unit owners. Attorney Alexander noted quite frankly to have Mr. DeJesu apply as the owner is incorrect. He has an undivided interest in that deck just like all the unit owners there. That is one issue that really needs to be addressed and considered by this board.
Attorney Alexander stated secondly, the bylaws themselves, Article 8, Section 13, which the Commission has a copy of talks about additions, alterations and changes to the appearance of the building. As Commissioner Sarno indicated, yes, you do need the written permission of the Board of Directors. These applicants, Mr. DeJesu and Eleanor DeJesu, have never received the Board’s permission. It was brought to the unit owners because there were changes that needed to be made. Those amendments were never passed as far as the Board is concerned. The Board has not granted permission for this sunroom. Attorney Alexander stated Section 13 does say that any application for a permit to make any addition, alteration or improvement in or to any unit shall be executed by the association only. Number one, the association, if they were to agree with Mr. Grillo and Mr. DeJesu, they would be the only ones that could come forward to this board according to the condominium documents which have never been changed. That’s the way that it stands right now. The association is the only one who could come here if the Board did grant Mr. and Mrs. DeJesu permission to enclose that deck.
Attorney Alexander stated there are a lot of issues that go along with this application besides just land use. This Board and the Town of Enfield have a legal obligation to all the rest of the unit owners who are part owner in this deck. Attorney Alexander pointed out in the condominium documents it talks about the decks being a limited common element which the unit owner has exclusive use thereof. However, it is still owned by all the unit owners. So the board of directors for the association is very concerned that this board would just ignore these documents that currently stand on the land records and throw this into chaos. Attorney Alexander stated she can tell the Commission as she sits here if this Commission grants this special use permit, there’s going to be some type of action that’s going to be taken – either legally in the court system or the board then going in and holding another meeting to revoke this proposed amendment that’s supposedly according to Ms. DeJesu passed. The Board says it does not pass. Attorney Alexander’s opinion is this amendment did not pass as well. There are several complications here and first and foremost with the unit owner who does not own it. The owner, it says Mr. DeJesu, is not the owner of this deck. It is the association and all the unit owners that own this deck. Secondly, the association is the only one that can come forward and apply for a permit in front of this board and, thirdly, the commission never granted permission for this to be done. To circumvent the rules that stand for this condo or any condo association is not right and not correct. That is the purpose of having your condominium documents. Otherwise, it would be just like every other single family homeowner coming in and that is not what this development is. Attorney Alexander requested that this Commission table any action on this until they seek further legal advice from the town attorney now that she presented the other facts of who the other owner is and that the association is the only one that can come forward.
Chairman Duren stated they have as part of the record a letter from Carolyn Jordan, the President, informing the Commission of a special meeting held and the vote taken on the deck enclosure. It says the majority of owners voted in favor by ballot on an amendment to allow an enclosure of the deck. Attorney Alexander stated Ms. Jordan is here to speak to that letter. That letter was actually written by Ms. DeJesu in her handwriting and Ms. Jordan will testify that she was badgered into doing it. Attorney Alexander stated if you want to go further into this, she says that the amendment passed. Which amendment? Again, she’s talking only the amendment to the bylaws. The amendment to the bylaws only requires a majority vote. The amendment to the declaration requires a two-thirds or sixty-seven percent majority vote of all unit owners to pass. The Commission will see in the amendment that one was contingent on the other.
Chairman Duren stated Ms. Jordan’s letter stated the amendment passed for the deck. Attorney Alexander stated those were both voted on the same night. An amendment to the declaration of the condo documents requires a two-thirds majority vote. An amendment to the bylaws requires the majority vote. Attorney Alexander stated even if she buys the argument in the letter, the Board still never granted permission whether these amendments passed or not. That’s what the declaration as it currently stands says. That part of the condo document was never changed. The board never granted its permission. What the board was trying to do with these amendments was to put some rules and regulations in place so there is only one style of deck that can be added on. You can’t think of this as only one individual unit owner who’s doing this. The board was thinking more globally. If this unit owner is going to do it, there’s going to be others that want to come up and do this. So, how do we protect ourselves as a condo association for putting rules in place for how this is going to be insured, how this is going to be maintained, how this is going to be repaired, and how it is going to be replaced. This is a limited common element and right now that onus stands on the condo association. Mr. Grillo says that Ms. DeJesu has offered to be responsible for insuring it but the board has no way to enforce that. If she doesn’t insure it, the condo association has to insure it and the way that the declaration currently stands is that they have no way to enforce that and assess that charge against the unit owner. The amendment was designed and drafted in a way to protect the association and if the unit owner doesn’t maintain it, the association then could assess a special charge against the particular unit owner and place a lien on it just as if it was a common charge and a common expense to everyone. Attorney Alexander noted the board also put a lot of thought into this and had two meetings to try to accommodate this request. Unfortunately, it didn’t get the sixty-seven percent majority vote that it needed. By the Commission just granting the special permit without thinking about the legal ramifications, the Commission is really opening up all the unit owners for being responsible for this deck for one person.
Attorney Alexander stated she has called the attorney for Sunroom Homes and said look, this is probably going to end up in litigation so let’s see if we can come to a general consensus here on how to address this issue so that everybody is happy. Let’s go back to the unit owners and say do you want to spend $20,000 litigating this matter or do you want to see if we can make this amendment pass this time so that everybody is happy. Ms. DeJesu can build her sunroom and the unit owners themselves can be protected by not having to incur the costs associated with this sunroom for one person and the association can then pass those costs on to the particular unit owner. Attorney Alexander stated Ms. Jordan can speak to the contents of her letter.
Attorney Alexander stated there are a lot of issues here other than just issuing a special permit for one unit owner. You don’t even have the owner coming in and filling out the permit application and the Commission is contravening the association’s declaration and bylaws by saying that anybody can come in and not the association. Chairman Duren asked who the owner is. Attorney Alexander stated she is saying that all the unit owners are the owner of that deck because it is a limited common element. Chairman Duren stated Attorney Alexander stated even the applicant is not the owner. Attorney Alexander stated the applicant is Mr. Grillo who works for Sunroom Homes. She is saying he can’t be the applicant because the condo documents say only the association can apply for a permit before this commission. If the board of directors gives approval for someone to make an alteration or addition, then the only one who can come forward and apply for the permit to do that is the association and not the unit owners themselves and not Mr. Grillo who works for the company who wants to build this.
Commissioner Hickey stated the Commission has the assistant town attorney’s determination that it is not the purview of the Commission to get involved in condominium association disputes. In the presentation that has been given here, the essence of it is a dispute with the condominium association. There’s been no testimony or anything addressed to the criteria for a special use permit and the Commission is being put in the position of being the arbiter for the condominium association.
Attorney Alexander disagreed with one point. The Commission cannot consider an application that is improperly filed and that is not the owner of the property. There is no legal dispute here as to who owns these decks. That is very clear. The decks are owned by all the unit owners at this condominium complex and it is in the document and on the land records. The Commission cannot disregard those documents that are recorded in the land records. Those documents are filed as part of the whole process when this complex was approved back in 1980. There was a public offering statement and they were approved by the town. The town can’t ignore those. So why the Commission doesn’t want to get involved in the legal dispute over whether this amendment passed or didn’t pass, they can’t dispute the fact that the only person that can apply for this permit is the association. Attorney Alexander noted there is no dispute on that.
Commissioner Sarno asked about resale. If the Commission were to approve this sunroom and this one owner takes ownership of the sunroom but then goes to sell the unit. When somebody buys a unit, they look over the bylaws and you can’t make a separate rule and regulation for that one unit. Commissioner Sarno really didn’t think this has anything to do with the Commission.
Chairman Duren asked if when the assistant town attorney made that ruling, if they had the material that was given to the Commission tonight. Mr. Giner stated the ruling was based on whether or not they required a sixty-seven percent versus fifty percent vote. The question of who owns the deck is the first time that issue has come up. Mr. Giner would agree that the Commission doesn’t have an opinion regarding if the proper owner submitted the application or not. Chairman Duren stated the Commission can keep the hearing open and have it further checked by the town attorney.
Commissioner Hickey stated the Commission is not hearing a planning and zoning issue. They are hearing the attorney for the condominium association saying that the applicant has no standing. If the applicant has no standing, the Commission should not be hearing this application.
Mr. Giner stated he can ask the town attorney about the proper owner. Attorney Alexander stated she spoke to the assistant town attorney, Mark Cerrato, briefly last week regarding this issue and he said that Mr. Giner could direct further inquiries on behalf of this Commission to his office. Attorney Alexander thinks that would be appropriate in this circumstance because if the applicant does not have standing, and that is the position of the association and the board of directors of the association, then she thinks that has to be addressed before the Commission goes forward and issues a special permit that could create a lot of havoc.
Chairman Duren stated now that the Commission has the attorney’s testimony, the Commission can hear from Ms. Jordan.
Commissioner Hickey stated the testimony ought to be addressing Section 9.202 of the zoning ordinance. Attorney Alexander stated she would be happy to come back and do that if the Commission is going to leave the hearing open to October 9. She doesn’t feel it is necessary at this point until it is decided whether or not there is a proper applicant.
Chairman Duren stated the Commission has to keep this hearing open in order to obtain that information. Attorney Alexander stated she would be happy to come back on October 9.
Commissioner Sarno agreed with Attorney Alexander that the decks are common areas and unit owners themselves just can’t apply.
Chairman Duren asked for audience input.
Carolyn Jordan, 34 Wynwood Drive, President of the Association stated Eleanor DeJesu came to her and put pressure on her to sign the letter. They went into that meeting knowing that she needed fifty-nine votes to carry the amendment. She got fifty votes. She called the attorney general and she was adamant. Ms. Jordan signed it under duress and told her afterwards that Eleanor put a lot of pressure on her that wasn’t fair. She signed it not realizing that she was signing that the amendment passed. It would have been enough to carry the bylaw under the state statutes but not enough for the amendment. Chairman Duren stated Ms. Jordan’s letter is stating she carried one part of it but not the whole thing. Ms. Jordan confirmed that. She needed fifty-nine votes and got fifty.
Commissioner Hickey asked what Ms. Jordan means by she put a lot of pressure on me. Ms. Jordan stated Ms. DeJesu is a very forceful woman and she doesn’t give up easily. She has been fighting well over a year for this and it reached a point where Ms. Jordan is tired of the whole thing. She fought very hard for her to get it but it reached the point where she just wanted to see it done one way or the other and she wanted it done right.
Commissioner Falk asked if it is specific as to what was approved and what wasn’t approved. Chairman Duren stated the Commission doesn’t know. Ms. Jordan stated she was signing that they did have a meeting and she understood that they didn’t get enough votes to pass it. Commissioner Ladd stated it goes back to whether the applicant is a legal applicant. Chairman Duren stated the Commission will leave it to the town attorney’s office.
Chairman Duren opened this hearing to the audience. No one else spoke in favor or against. Chairman Duren stated he will keep this hearing open because the Commission has to know from the town attorney exactly who the proper applicant would be.
Chairman Duren continued this hearing until October 9, 2008. Chairman Duren asked that Mr. Giner make sure the Town Attorney has an answer for the Commission by that date. Mr. Giner stated the conversation previously was based on the two letters the Commission got and what percentage of the vote was necessary. However, the issue of ownership of the property was not raised. Mr. Giner will request this from the Town Attorney.
An audience member asked if there would be a meeting on October 9. Chairman Duren confirmed that there will be.
PUBLIC HEARINGS - NEW
a. PH#2652 – Subdivision of existing parcel into two lots for the purpose of creating one additional building lot at 217 Brainard Road, zoned R-33, Map 62, Lot 104, James and Sally Bianco, Owners/Applicants. (Hearing scheduled for September 18, 2008.) (Must close by October 23.)
T. J. Barresi of Ed Lally Associates, Prospect Hill Road, Windsor, appeared before the Commission representing James and Sally Bianco.
Mr. Barresi stated the applicants are applying for a subdivision to divide their lot at 217 Brainard Road into two lots. The property is located on the north side of Brainard Road. It is to the east of Charlotte Lane and immediately west of Control Module. The property is located in an R-33 zone. It contains 4.04 acres.
Mr. Barresi stated today the lot serves as a single-family residential piece of property. There is an existing house to the rear of the property. That house is served by an existing bituminous driveway off Brainard Road. The frontage portion of the lot is heavily wooded and the topography rises up from Brainard Road to a ridge line and then drops back toward the existing house.
Mr. Barresi stated the applicants are applying to divide the lot into two lots. The new additional lot is shown as Parcel B on the subdivision plan. The existing house will be maintained on one of the lots which will contain 143,272 square feet. The new lot, Parcel B, will contain 33,000 square feet. Both lots meet the zoning regulations and no variances are required. At this time, they do not propose any open space. They received a memo from the Town Planner recommending that they provide a fee in lieu of open space to make sure that the subdivision does comply with the regulations. They are going to comply with that.
Commissioner Ladd asked if the 33,000 foot lot is part of the subdivision. Mr. Barresi stated that is a single lot. It was at one time part of this entire piece of property and Mr. Bianco received a split after the regulations came into effect. With the new lot split, he has to go for a subdivision. Commissioner Ladd asked if it would be a resubdivision. Mr. Barresi stated no, because when that lot was split initially, he didn’t have to do a subdivision.
Mr. Barresi submitted a grading plan which is conceptual to show that a house and driveway could work with the existing topography and geometry of the lot. They are showing a typical colonial with erosion controls to protect down graded areas. They do realize at the time of the building permit that a more detailed twenty scale drawing has to be provided to the building department prior to getting a permit for construction.
Mr. Barresi stated he received a memo from the Town Planner this week with a couple of conditions. He is adding a couple of notes. The Town Planner also mentioned some common conditions in his September 17, 2008 memo. Mr. Barresi is willing to comply with the conditions.
Chairman Duren asked if they are requesting a waiver for open space. Mr. Barresi stated a waiver is not allowed. After he received the memo from the Town Planner, he went through the regulations and they do not qualify for a waiver. Based on the proposal of one single lot, they propose a fee in lieu of open space. Mr. Giner stated the procedure would be that the applicant needs to hire an appraiser and then he would come in with the appraisal. The Commission would have to include in the conditions what the fee would be based on that appraisal of the unapproved value of the land prior to subdivision. Mr. Giner suggested tabling this until the next meeting so the applicant can get an appraisal done.
Mr. Giner asked if the applicant is proposing to do anything to that lot. Mr. Barresi stated he is changing the address and there is no reconfiguration of lot lines as that was previously done.
Chairman Duren opened this hearing to the audience. No one spoke in favor or against this application.
Chairman Duren stated he will keep this hearing open until October 9 pending receipt of the appraisal.
b. PH#2653 – Special Use Permit to allow limited retail showroom and sales on a parcel that is zoned Industrial 1 located at 199 Moody Road, Map 99, Lot 1, Atlantic Woodcraft, Inc., Applicant/USP Capital Business Credit, Owner. (Hearing scheduled for September 18, 2008) (Must close by October 23.)
Michael St. Germaine, President, Atlantic Woodcraft, 45 Shirley Street, Wilbraham, Massachusetts appeared before the Commission regarding this application. He is currently in a purchase and sale agreement on the building located at 199 Moody Road. He will be opening a manufacturing facility doing architectural millwork. As part of that, he would like a special permit to have a 2,000 square foot showroom limited. Most of their retail will be by appointment only and most will be wholesale. Ninety percent will be by appointment only and there are very limited walk-ins. The showroom is for kitchen cabinets and counters and all those are bought through other suppliers such as Woodcraft or Aristocraft. The other side, the architectural mill work, is all commercial and there is no retail.
Commissioner Falk asked where the building is. Mr. St. Germaine stated it is the former Magnani and McCormick building and it has been vacant for a couple of years. Their intent is to clean up the property. It is overgrown. There are no external changes planned. The only real internal change would be the showroom. There is a plan showing the showroom and what they intend to do. The remainder of the building will be architectural mill work manufacturing. The kitchen cabinets will be retail/wholesale and they are pre-manufactured.
Commissioner Dumont asked about the number of employees. Mr. St. Germaine stated there will be nine this year, by next year sixteen and by the third year they should be up to twenty-five.
Mr. Giner stated the Commission has a memo with proposed conditions. Mr. St. Germaine has seen the conditions and has no problem with them.
Chairman Duren opened this hearing to the public. No one spoke in favor or against this application. Chairman Duren closed this public hearing.
Commissioner Hickey made a motion, seconded by Commissioner Ballard, to approve PH#2653 – Special Use Permit to allow limited retail showroom and sales on a parcel that is zoned Industrial 1 located at 199 Moody Road, Map 99 Lot 1 Atlantic Woodcraft, Inc. applicant/ USP Capital Business Credit, owner, in accordance with the application record and the following conditions:
Conditions to be Met Prior to Signing of Certificate:
1. The conditions of this approval shall be binding on the applicant, land owners, and their successors and assigns.
Conditions to be met prior to the issuance of permits:
2. This approval will become effective upon the filing of a Special Use Zoning Certificate signed by the Commission Secretary on the Land records by the owner of the property. Proof of such filing shall be in the file prior to the issuance of any permits.
3. The applicant shall comply with any applicable requirements of the Building or Fire Codes.
General Conditions:
4. This approval is for the specific use and structures identified in the application. Any change in the nature of the use or the structures will require new approvals from the Enfield Planning and Zoning Commission.
5. The sales use shall be operated in compliance with Section 6.30.4 of the Enfield Zoning Regulations.
6. A building permit, if necessary, for the construction of facilities as approved must be obtained within a year of the effective date of this approval or the permit shall be rendered null and void, unless an extension is granted by the Commission in accordance with Section 9.20.3 of the Enfield Zoning Regulations.
7. By acceptance of this permit and conditions, the applicant, land owners, and their successors and assigns acknowledge the right of Town staff to periodically enter upon the subject property for the purpose of determining compliance with the terms of this approval.
Chairman Duren felt this would be a good addition to the town. Commissioner Hickey thought this was a wonderful idea. Commissioner Ladd noted it would not affect the neighborhood which is all industrial.
OLD BUSINESS
a. PH#2644 – Text Amendment to Sections 2.30 and 4.30.11 of the Zoning Regulations to allow privately owned non-subsidized senior housing with additional evaluation criteria, Frank Troiano, Applicant. (Hearing closed on 7/24/08 – Deadline for decision by tonight unless extension granted.)
Chairman Duren noted Mr. Troiano extended this hearing to give the attorneys further time to review the application.
Commissioner Falk made a motion, seconded by Commissioner Hickey, to accept the extension request for PH#2644 to October 23, 2008. The motion was approved by a 7 – 0 – 0 vote.
NEW BUSINESS
a. PH#2191 – Request for a three-year extension to an earth removal Special Permit for Botticello, Inc. at 112 Broad Brook Road, located in an R-44 District, Map 103, Lot 39, Botticello, Inc., owner/applicant.
Mark Zessin, a professional civil engineer with Anchor Engineering Services, Inc. of Glastonbury appeared before the Commission representing Botticello, Inc. They are requesting a three-year extension on the permit to coincide with the October, 2011 expiration of the current wetlands permit. Mr. Zessin has been before this Commission many times since the mid 1990’s. The site has been permitted for excavation since the early 1980’s. He personally renewed the wetlands permit in 1996, 2001 and 2006 and the last permit goes through 2011.
Mr. Zessin stated the site is on 112 Broad Brook Road, Route 191 in the vicinity of Jarmoc Farms and just south of Enfield Transit Mix and west of the railroad tracks crossing Route 191. They have done almost no excavation since 2002. Presently the only inquiry for material is from the state for the new Suffield Enfield Bridge for embankment material. There’s also been an inquiry for a project at Rentchler Field in East Hartford which the state says is going to happen after the football season.
Commissioner Falk asked about the limitations. Mr. Zessin stated there is an existing embankment of 35’. It gently slopes upward from the south to the north. It’s about 10 to 15’ at the northerly embankment which is right up against Jarmoc Farms and would be behind Enfield Transit Mix silos if you were looking at it from Broad Brook Road. If you were to drive in the driveway that accesses the site, it is gently going up from there. If you drive straight in, it is gently going uphill to provide a pitch. The owner owns land in East Windsor and they grow corn over most of it. When this is done, that is what he would do. Commissioner Falk stated they would not be creating a big pit. Mr. Zessin stated it is not a hole. It would be below the Jarmoc property.
Mr. Giner pointed out the applicant has asked for three years and the regulations only allow a two-year permit. The applicant can’t renew it for more than two years. The wetlands permit is for five years. They will have to come back in 2010. Mr. Zessin stated they will come back in 2010 for one year at that point. Mr. Giner stated the permit would be good to October 16, 2010 and all previous conditions of approval would remain in effect.
Chairman Duren stated the Commission has not heard any complaints about this property.
Commissioner Hickey made a motion, seconded by Commissioner Falk, to approve PH#2191, Botticello, for a request for a two-year extension rather than a three-year one. The motion was approved by a 7 – 0 – 0 vote with Alternates Gregory and Ladd voting.
b. PH#2614 – Request for extension for the start of construction for Special Use Permit for a 40-unit Senior Residential Development Stonegate Associates, LLC, Applicant.
Mr. Giner stated they have a year from the filing to begin construction. They filed a special use permit on the land records but they have not begun construction. Stonegate Associates would like to request an extension for the start of construction before it expires.
Chairman Duren stated this is for the land use on North Maple Street.
Commissioner Falk asked what happens if the housing market is bad next year. How many years would you go out? Chairman Duren stated it is a decision by the Commission.
Mr. Giner stated all special permits are good for five years once the construction begins. It does not extend the end date. After five years they would have to come back and extend the whole project again or the Commission may decide they want to rehear it like they did for Mayfield. Mr. Giner stated you don’t want to encourage them to start construction just to meet the deadline.
In response to a question from Commissioner Hickey, Mr. Giner stated the Commission denied this application originally for a larger project with some waivers. They came back with a 40-unit application and the Commission approved that.
Commissioner Ladd asked if they signed over the land that they were going to give to the land use bank. Mr. Giner could not answer that. At this point all they have is the special permit filed in the land records. He doesn’t believe they have final mylars ready that would allow them to receive the permits. There’s been very little activity.
Commissioner Hickey made a motion, seconded by Commissioner Ladd, to approve the request for extension for the start of construction for a special use permit for a 40-unit Senior Residential Development, Stonegate Associates, to extend the construction period by one year.
Chairman Duren stated it is good to see an applicant not tear it up just to meet the requirements to start. He would rather grant an extension.
The motion was approved by a 7 – 0 – 0 vote with alternates Gregory and Ladd voting.
OTHER BUSINESS
a. Applications to be Accepted
The following application was received by the Commission:
PH#2654 – Special Use Permit for a Class 4 Grocery Beer license at 397 Enfield Street in a Business Local (BL) District, Map 33, Lot 234, One Stop Deli & Convenience Store, applicant; 397 Enfield Street LLC, owner. (Hearing must be scheduled by November 20, 2008.)
A public hearing was scheduled for October 9, 2008.
b. Request from Konover Inc. for informal discussion regarding the Bissonnette property located on the north side of Elm Street opposite the Palomba Drive intersection.
This discussion was postponed to a later meeting.
c. Request from Ken Carlson for informal discussion on basement apartment regulations.
Ken Carlson, 125 Post Office Road, appeared before the Commission for an informal discussion on basement apartment regulations.
Mr. Carlson sent a letter to Chairman Duren with a rejection notice dated April 3 and including the code for the Enfield Zoning Regulations, which is 4.10.12 and the state building code which is R310.
Mr. Carlson gave some background on his property. This was a building built in 1918. It is an early raised ranch with a stairway outside the building rather than inside the building. He and his son purchased the building in 2000 and Mr. Carlson’s son is the owner of record. When they bought the building, it was a finished first floor and a finished lower level. There has been some confusion. He has talked to Mr. Giner, Mr. Warren, some council members, some real estate people and some of the old timers that live in Thompsonville. The confusion here is in the zoning regulations for the Town of Enfield they use the word “cellar”. The state of Connecticut uses the word “basement”. You say they can be interchanged because they mean the same thing. No, they don’t and that is where the confusion comes in.
Mr. Carlson stated a cellar is an underground room that is not suitable for living space and is used for storage. A basement is described as a room on the lowest level of the building, usually underground, that can be used for storage but can also be living, working or recreation space. The state of Connecticut uses basements. Things over the last fifty or seventy-five years have seen a lot of changes. Following World War II there were a lot of different style homes. The ranch became very common along with capes and raised ranches. These were styles that were not available prior to World War II. With the buildings that were built since World War II, the zoning in most towns required them to have basements not cellars.
Mr. Carlson stated the first building he bought in Thompsonville had a cellar. To get to the lower level, you had some wood doors you had to open up. Then you started going down the stairway and at the bottom was another door. The floor was dirt and the walls were made of a combination of brick and stone. Water poured through the walls. The ceilings and corners were covered with cob webs. They had sixty-amp service. The beams were pretty well eaten up and they were sistered in order to strengthen it. This is a cellar. It’s not fit to live in.
Mr. Carlson discussed furnaces and boilers.
Mr. Carlson stated words are very important. Down through the years, the building department and the Planning and Zoning has struggled with this particular concept. People would come in and want to put an in law apartment in their basement. The building department said you can’t have bedrooms in a basement. Their only choice was to build up or to build out. We are a very wasteful society. You take a 1,000 square foot ranch and it has l,000 square feet under it. It’s much cheaper to put an in law apartment into a basement rather than going up or out. When they came to the building department, they were told you can’t have a sleeping area in the basement. So they had no choice. If they wanted to have family members come to live with them, they put in an in law apartment. There are hundreds of finished family rooms in basements throughout the town.
Chairman Duren noted family rooms are different than living quarters.
Mr. Carlson stated as long as you put a finished room in a basement, it is going to be used for whatever people’s needs are. In talking to people, he understands that we have no regulations on the books in Enfield on basements. There are only regulations on cellars. If someone comes in with a basement, the state regulations say when basements contain one or more sleeping rooms; emergency egress and rescue openings shall be required in each sleeping room but shall not be required in adjoining habitable areas of the basement where emergency escape and rescue openings are provided. It shall have a sill height of not more than 44”. Mr. Carlson said when he went to the building department, he asked what he needed to do to meet the regulations. They asked do you want to meet the state or the town regulations. Mr. Carlson said he just wanted to put an egress window in the basement so they could use it as a bedroom. They said if you want to do that, fill out an application and it will go over to Planning and Zoning. Ginny will send you a letter back rejecting it. Once you get the rejection letter, you go to Jose Giner. This is what occurred. Before it got to that point, he spoke to Jose and Roger and said this is what I want to do. Their first reaction was you can’t do it. You can’t have a bedroom in a basement. Mr. Giner said they would research it but the reason they couldn’t find it is because there are no regulations on basements in the town of Enfield. There are just regulations on cellars and we haven’t built any cellars for the last fifty years or more.
Chairman Duren stated it has been a fire department requirement as far as the number of exits. In most cases, the town only has one exit which is a stairway. Mr. Giner stated Section 4.10.2 of the regulations which is the only thing that speaks to that requires that a cellar as defined in the regulations has to be beneath any finished floor area. So, theoretically, if you have a basement that is a finished floor area for habitable structures, it requires a cellar to be placed under there for storage. The state building code changed to allow those items. Mr. Carlson is asking the Commission whether they feel comfortable enough in allowing bedrooms under the zoning regulations.
Mr. Carlson asked that the Commission change the regulations to coincide with the state regulations.
Commissioner Ballard asked if there is an entrance and an exit.
Mr. Carlson stated they have a lot of unsafe basements with people living in them. If they go to the building department, they say if you want to have a bedroom here, you have to have an entrance and an egress and you must have an egress window. In his raised ranch, that is what they have. They had big enough windows but it was not an egress window that pushes out.
Commissioner Hickey stated he doesn’t see anything in the ordinance that would prohibit bedrooms in the basement yet state code or building code does have a say on this. He doesn’t think it is a zoning issue.
Mr. Giner stated it is a clarification of that section. Perhaps we need to reword it. If we always require a full cellar beneath a finished floor area, you could never have a finished floor area without having a basement with a cellar underneath it. In this case, you would not have a cellar underneath it. That is the way the regulations are worded and when he asked Ginny why we were not approving these types of things, that was the section cited and the language there is not a good language. If you put a game room in your basement, technically the regulations require you build a cellar under that. He agreed with Mr. Carlson that it doesn’t make any sense in that respect. If the state law is changed and certain things are met, then these items are allowed but he would take direction from the Commission to clarify and come up with some language that brings this up to whatever the modern codes allow with the understanding that if it is more than just a bedroom and if you are adding an apartment, you still have to come back to the Commission for a special use permit for a conversion. This would allow the fire department to check the windows to make sure people can exit in case of an emergency. Mr. Giner stated the issue was to feel comfortable changing the regulations.
Mr. Giner would change the regulations so you would not need to put a cellar under a basement. Commissioner Ladd stated you also want to change it so that we don’t allow slab houses. Mr. Carlson stated he can live with the state code. Mr. Giner stated he did sit down with Mr. Carlson and noted it does make sense what he is telling him. However, the Commission has to give the go ahead to come up with some revised wording.
Chairman Duren asked if Mr. Carlson is proposing that the Commission adopt R310. Mr. Carlson stated what he is proposing is that we can have a basement and not a cellar. If you have a basement, we adopt the state of Connecticut building code. If you have a cellar, it’s not fit to live in. Therefore, our regulations on cellars can remain because they are not liveable. Chairman Duren stated there will have to be a change in definitions.
Mr. Carlson stated there are no regulations on basements and we’re just going to have to add one more group of regulations to include basements. If the state has a definition that is sensible and will give the homeowner the maximum enjoyment of his property, Mr. Carlson was in favor of it. There are many reasons why people would probably put someone in the basement. There are a lot of homeless people and if somebody takes them in, they can put them in the basement. Rather than try to warehouse a lot of homeless people, it is better to spread them out across town.
Chairman Duren asked if the Commission should also adopt section R310 of the state regulations which pertain to emergency escape and rescue openings. He would hate to allow it and not have proposals for emergency egress by people using it. Mr. Giner stated he can come up with appropriate language to make sure that a basement meets all state and local codes.
Some discussion followed regarding ranches and what types would be appropriate for basement living.
Chairman Duren stated a lot of towns have this but he wants to make sure such living arrangements are safe. Mr. Carlson stated by allowing this, they all should go to the Building Department and the Building Department should say yes, you can but you have to do this, this and this. When he went to the Building Department, they told him what he had to do. You have to have proper electricity and heating. He suggested leaving it up to the building department as to what is appropriate but Mr. Carlson noted the need for a code that does allow basements. Mr. Carlson discussed his building on which his taxes have increased.
Chairman Duren thanked Mr. Carlson for coming in and proposing that change. He wants to make sure the Fire Marshals are on board and Mr. Giner will run any regulation by them before the Commission takes action.
d. Request from Enfield Deck Hockey for Informal Discussion regarding the permissibility of flea market or similar uses in Industrial Districts.
Mr. Giner noted the applicant is not present. He will contact him to see if he wants to come to another meeting. Chairman Duren asked if we allow flea markets, will it have to be for the Industrial Districts entirely. He noted people did not want permanent flea markets in the town. Mr. Giner stated Enfield Deck Hockey was going to do flea markets every Saturday. Chairman Duren discussed previous enforcement regarding flea markets.
Mr. Giner will contact this applicant.
e. Discussion of Policy regarding approvals for recurring temporary events
Chairman Duren stated on the table tonight is a proposed policy regarding approvals for recurring temporary events. He doesn’t see that once we have had the helicopter at the high school or at the fourth of July or a carnival that comes to the May Company or Home Depot sales every year to have to have it come before the Commission. This is a change to allow Mr. Giner to approve administratively events that have occurred before if it is in the same location and there are no changes and police and fire are happy.
Commissioner Hickey felt it makes perfect sense to establish such a policy for administrative approvals.
Mr. Giner brought up the fireworks which have been approved but there were issues with the tent installed. This use will be coming in April for firework sales. The Zoning Enforcement Officer can approve open lot sales like the sale of Christmas trees. Ms. Higley refused to issue a permit for the fireworks because she had all these other things on the site that never were approved by the Planning and Zoning Commission. When he met with her, he told her if she wants to have a tent, she will have to come back to the Commission. She will be applying in April.
Commissioner Sarno made a motion, seconded by Commissioner Hickey, to accept the policy regarding approvals for recurring temporary events allowing the Director of Planning to approve such events administratively. The motion was approved by a 7 – 0 – 0 vote with Alternates Gregory and Ladd voting.
Mr. Giner reminded the Commission about the identification badges and he asked what type they would prefer. When the Commission has their picture taken, they will be given a card. Mr. Giner will have the plastic enclosures for the pictures. Pictures will be taken September 27 and October 4 in the morning.
ADJOURNMENT
Commissioner Hickey made a motion, seconded by Commissioner Gregory, to adjourn. Following a unanimous vote, the Commission adjourned at 9:45 p.m.
Respectfully submitted,
_______________________
Peter Falk, Secretary Enfield Planning and Zoning Commissionjmr