Tuesday, November 10, 2009

Pinebrook Crossing - Repairs
Carmel Road - Emergency repairs
Peddling & Soliciting – Increase in fees
Land Use Violations – Fines & Hearing Procedure

November 3, 2009

First Selectwoman Gorski called the Special Town Meeting to order at 7:05
p.m. There were approximately 160 in attendance. The meeting began with everyone standing for the Pledge of Allegiance.

The First Selectwoman called for nominations from the floor for a moderator. There was a motion by Steven Thornquist, duly seconded to nominate Bill Blake. There were no further nominations.

Moderator Blake read the legal notice for the meeting.

Item (1) on the call: To approve, modify or reject the recommendation of the Board of Finance to expend the sum of $45,000.00 for additional costs to be incurred for the repair of the bridge located on Pinebrook Crossing.

Moderator Blake called on Highway Foreman, Alan Green to speak about the repairs that have been made to the bridge.

Alan Green, Highway Forman stated that there were unforeseen issues with replacing the bridge at Pine Brook Crossing. It was necessary to divert water after heavy rains and guard rails were installed.

Richard Van Horn – 86 Crestwood Road - Have you already spent the additional $45,000? Yes. Any expenditure over $20,000 has to come to the town for approval first before it is spent.

Town Counsel Kevin McSherry - If the money spent is within the appropriated budget it is allowed to be spent.

Russell von Beren – 134 Wooding Hill Rd - What was the original estimate for the bridge repair? $170,000.

Randall Raddatz - 22 Bethridge Rd – I believe on December 27, 2007 there was a special town meeting to approve in advance $150,000. The meeting was held then in order to get 2007 pricing. We approved in advance as statute requires. The resolution should state – to approve additional costs that have been incurred instead of to be incurred.

Van Horn – Obviously we have overspent the budget without prior approval.

A motion to move the resolution to a vote was moved and duly seconded. Overwhelming yeas.

Item (2) on the call: To approve, modify or reject the recommendation of the Board of Finance to expend the sum of $30,000.00 for emergency repairs to Carmel Road.

von Beren – What repairs?

Highway Foreman Green – We will be replacing a head wall. The rain in recent years has washed out the wall.

Richard Photos – 45 Carmel Rd - Will the drain pipes on my side be repaired, as well? It is like an ice skating rink. Yes.

Bernice Mozealous – 44 Carmel Rd - Are you fixing the curb? The water drains and the curbing would help this problem.

Highway Foreman Green – Possibly, yes.

There were no further questions. A motion to move the resolution to a vote was made and duly seconded. Overwhelming yeas.

Item (3) on the call: To amend Chapter 157, Peddling and Soliciting to Increase the Fees charge for registration from $2.00 per year to $50.00 per month for Non-Residents and $25.00 per month for residents, (veterans, school age children, local civic organizations and persons or their campaigns running for elected offices are exempt).

Steven Press, Jr. - 280 Downs Rd – would like to propose an amendment to the resolution to remove the exemption for politicians so that they will also pay the fee. It will serve as a reminder of the burden of their fellow tax payers.

Town Counsel stated that it may not be legal to charge candidates who campaign.

S. Press, Jr. - Candidates and politicians should pay the fees as well. Counsel has said there may be a legal issue.

There was a motion made and duly seconded to amend the resolution.

Derrylyn Gorski, First Selectwoman – I believe state statute exempts from charging local candidates running for office. A vendor is a for profit entity.

Betsey Thornqist – 25 Oak Ridge Dr – If the resolution turns out to be illegal, will it invalidate the entire resolution?

Atty McSherry – It will invalidate that portion. It would be seriously challenged by the First Amendment rights and American Civil Liberties Union across the country. We have a right to go politicing and I do not believe the amendment to the resolution would be legal.

Art Slicer – 70 Lacey Rd – The candidates from out of state or national we would be justified in charging but not our local candidates.

Larry Corrone 35 Russell Rd – Politicians should be reminded of how bad taxes are.

Jim Foley – 41 Pleasant Dr – Politicians are giving to the town and should not be charged for campaigning. That’s the right to free speech. It would be silly for the town to get in the middle of it.

S. Press, Jr. – If it can’t pass with the amendment then delete the entire resolution.

Moderator Blake asked for a motion to remove the exemption for persons and/or their campaigns running for political office. The voice vote taken was - overwhelming nays.

Thomas DeFillippo – 739 Carrington Rd – made a motion for a hand vote, duly seconded by L. Corrone. In favor of amending the resolution – 36; Against – 64. The original resolution stands.

First Selectwoman Gorski – The Town Clerk approached the Board of Selectmen asking about raising the fees for vendors. There has been an increase in the last few years in persons inquiring about obtaining a vendors/peddling & soliciting permit. The fee has been $2.00 since 1971. Prospect’s vending ordinance is $5.00 per day for resident and $50 per day for nonresident. The fees in surrounding towns range from $10 a month to $450 a year. The fee is higher for non residents because residents are already taxpayers in the town. A non-resident has equipment and vehicles that are taxed in another town. The job of the Board of Selectmen is to give support to the local Bethany businesses and that is why there was a decision to raise the vending fees. That is the history of this particular resolution.

Bruce Hescock - 160 Humiston Dr - How would this affect the farmer’s market and Lion’ s
Club Tag Sales? Would the vendors themselves have to pay the fee?

First Selectwoman Gorski - Civic organizations are exempt, as well as farmer’s markets.
Farmer’s markets are exempt by state statute.

Russell Arpaia- Woodbridge – There are many businesses in town that lease and do not own property. I operate in Woodbridge where the annual fee is $75 and in Orange where the annual fee is $25. The fee in New Haven is $200 a year. To make it $600 a year is not fair. The State Police had me shut down the other day because I was selling breakfast sandwiches before 9:00 a.m. The health department said my food truck is the nicest they have seen. I do not think this proposed ordinance is fair and I believe it is written for me. I ask that the residents of Bethany defeat this ordinance.

von Beren – There must be some justification rather than to go from $2.00 to $600. What do we have to do besides issue the permit? What other cost does the Town of Bethany have?

First Selectwoman Gorski stated again that the fee is not $600 a year but $50 a month.

Press, Jr. – Government states as a market regulator that the town cannot discriminate against nonresident for residents.

Town Counsel McSherry – Not applicable to apply inter-commerce issues to things that fall directly in the guise of the Bethany Code of ordinances and always has. The $2.00 structure has always been in place with local exemptions. Increasing the fees is to cover some of the costs that are incurred on a regular basis by the Town Clerk’s Office.

Foley – I have a small business. I do my business from my home which requires no support from the town, no one comes to visit my house and yet I pay extra taxes for the privilege to do so as does every business man sitting here tonight. We have the right as businessmen to ask that other people doing business in our town that pay no taxes start paying their share.

L.Corrone – taxes are getting out of hand. Maybe taxes should be reduced.

B. Thornquist – I would just ask that we keep the conversation non personal and to the issue at hand.

Thomas Hunt – 809 Carrington Rd – I own a business in town. I agree that taxes are high enough regardless of whether you own a business or not. I don’t believe that there should be any fee for residents.

Salvatore LaPaglia – 648 Amity Rd – There is not a problem with paying a fee. It is just the amount of the fee. Others towns are charging $150. $600 doesn’t make sense.

Sharon Huxley – 340 Old Mill Rd – Who pays for the QVHD inspections?

Arpaia - The vendors pay for their own inspection. The fee is totally separate.

Town Counsel McSherry - That is correct but the Town hires QVHD to be its health department. We pay them to issue your license although you pay the fee to them. They get paid from us and from you.

Dave Forman – Tax Collector -329 Downs Rd – Many businesses in town pay personal taxes. What would you consider a fair fee?

Arpaia - $100 or $150.

Forman – In comparison with what businesses in Bethany pay, $100 - $150 would not be out of line.

The question was asked as to whether the amount was for non residents, residents or both? That also raises the issue that the monthly fee be 1/12 of that.

S. Thornquist – For clarification, you are making someone coming in for a month to sell ice cream for $50, pay the yearly fee of $150. If you want to make it so that someone who does temporary business in town pays a lesser fee than someone who does permanent business in town then you need to make it a monthly, weekly or daily fee.

David Jackson -171 Miller Rd – The resolution needs to be broken down because there is more than one issue.

William Sawdon -164 Hilldale Rd – Modify amendment to $10.00 a month and $120 a year regardless of resident or nonresident.

There was a motion made to accept the amendment to the resolution by David Forman, duly seconded by Donald Shea.

Art Slicer – 70 Lacey Rd – This is an ill-conceived idea. I think it should be tabled for further discussion and clarification. This is not the place to decide the fee. A motion was made to table the resolution by Arthur Slicer, duly seconded.

S. Thornquist – This is not a particularly complex issue. I think we have heard some strong opinions about this issue. This is exactly what the town meeting is supposed to do. Get the opinions of those present and come to a decision.

The Moderator called a motion to table the resolution. Overwhelming nays.

A motion was made, and duly seconded to amend the resolution to change the monthly fee to $10 and the annual fee to $120. Overwhelming yeas.

Rosemary DeFillippo – 739 Carrington Rd - We need to address the $500 penalty fee. Change the penalty to $10 for first offense and $120 for second offense.

There was a motion duly seconded to move the amendment to the resolution to a vote.

Brian Eitzer – 11Carriage Dr – If the penalty is the same as the cost no one will want to pay but will wait to see if they get caught. Penalties are made for a reason.

Slicer – We should charge $1,000 if they break the law but $500 is a reasonable amount.

Pat MacGregor - 65 Anthony Ct – There is a valid reason to follow the rules and do things right up front. $500 is a reasonable penalty.

Foley – The concept of a penalty is the result of violating a rule. I think that the penalty encourages people to obey the laws. The penalty clause as it stands should remain.

A motion to amend the penalty clause from $500 to $10 first offense and $120 second offense was called. The amendment does not carry. Overwhelming nays.

A motion to call the amended resolution of $10 per month and $120 per year for the Peddling and Soliciting Fee was made. Overwhelming yeas.

Item (4) on the call: To amend Chapter 129 of the Code of the Town of Bethany to add an Ordinance Establishing Fines for Land Use Violations and an Ordinance Establishing A Hearing Procedure For Land Use Violations.

A motion was made and duly seconded to dispense with reading of the resolution.

Sharon Huxley, Planning & Zoning Chairman – Gave a brief overview of the amended Land Use ordinance. If someone violates a rule unknowingly, than everything is done to settle the matter in an amicable fashion. Once a complaint is made, there will first be a call from the ZEO - an inquiry. You may get a first notice of a violation followed by a second a month later. After a period of time, if nothing is happening, and it is becoming reasonably certain that further steps must be taken, the ZEO will file a cease and desist. At that point, the violator has 30 days to appeal to the Zoning Board of Appeals. It is at this point that we sometimes run into problems. The next level of action that we have, unfortunately, is an injunction to take someone to court. We do not want to do that. It is expensive for all parties. We are only talking about serious violations that have gone on for years. It sometimes does not get resolved until someone is getting ready to sell their land. We would like for everyone to be aware and abide by the same rules as their neighbors and everyone else who pays taxes.

Pat MacGregor - Inland Wetlands Chairman - We want to be able to resolve these issues at the town level without undue cost to the taxpayers or legal expense to the town. These issues need to be addressed locally. In general, residents follow the regulations.

Hiram Peck -Town Planner – There are two parts to the ordinance. The first is to establish the fines and show how those fines would work. The second part is the ordinance establishing a hearing. This ordinance would probably be the 5th, 6th or 7th step in a long process. This is an intermediate process between the normal zoning enforcement process and going to court. It was designed to be user friendly. A number of other towns in the area have done the same thing and it has worked extremely well.

Marcel Languerand - 173 Carrington Rd – Do the same rules apply to all? If a violation is picked up on one road and the same thing is happening on another road. How does that work?

S. Huxley – We don’t go looking for things that are wrong. It is always on a complaint basis.

Kristine Sullivan - 783 Amity Rd – When the letter is sent out it will site the regulation that is being violated and provision of the ordinance. A person would know and be able to get the information. They will be aware of what is happening. When the enforcement officer is writing their letter they will be including all the appropriate language. The people will know what their rights are and what the responsibilities and consequences are of doing what is not correct.

S. Huxley - Currently there are eight residential violations that are large issues and 4 violations in the business & industry zones. These fines are since 2004.

P. MacGregor - We have seen a level of frustration from residents and business owners in town in the past several years where you try to resolve an informal cease & desist process or you go to court. This ordinance will help to give us another set of tools to resolve things.

Jack Ellison - 55 Green Hill Rd – This is not a clean up attempt or punitive measure. It is not between the town and the person that is violating this regulation. It is also to protect land holders that may have a violation impinging upon their land.

Randy Raddatz – 22 Bethridge Rd – Each day that a violation continues shall be deemed a separate offense? Does this mean that the fine accrues from the day the violation occurs? Question 2 - Is the anticipatory potential noise ordinance in this or separate?

Town Counsel McSherry - There is no fine until a citation is issued and then it can accrue. Question 2 – It will be a separate and distinct ordinance.

Sue Ryker – 2 Clay Rd – The town is taking too much control.

S. Huxley - Some complaints are totally baseless. An investigation will take place before any fines are issued.

P. MacGregor – The process of investigating a complaint is the same as what it is right now. That is not changing. The amended ordinance is not adding any new rules about what we can or can’t do in our town or on our property. It is providing tools to better be able to resolve these issues.

S. Thornquist – The goal of the resolution is not to hit people with fines but address them before they get to a fine. The resolution states that if after years of investigation no compliance is made, then maybe you will get a fine.

Bill Grieger - 185 Fairwood Rd – I have a small farm and it has taken me years to make my property the way it is. Why do we need this fine instead of checking with our neighbors if there is a problem. I have been to Inland Wetlands five times in order to make my place nice. This town is supposed to be rural.

Jack Ellison - 55 Green Hill Rd - Is a violation being broken and if so we are asking those being impacted to come and talk at the town level. Right now we have the ability to issue a citation, then take someone to court. The court expense is tens of thousands of dollars. The tax payers are the ones who will pay that. Right now the neighbors who are being impacted have no way to bring the situation to a resolution.

Janet Finneran - 648 Carrington Rd – Are the procedures that you describe written down anywhere?

S. Huxley – They are in the enforcement section of the regulations.

Warren Buchter – 181 Beacon Rd – I have to say that this whole issue probably applies to me more than anyone else. There have been issues going on for twelve years in my neighborhood. I’ve been dealing with it for seven years. I’ve gone to the town Zoning Department, Zoning Enforcement, First Selectman’s office, Town Counsel, D.E.P. and QVHD, who has been very helpful in resolving some of these issues. Repeatedly I am told that the violations are not enforceable. There is no provision in the ordinance to enforce noncompliance. I strongly urge that everyone vote in favor of this resolution tonight.

S. Press, Jr. - What if a citizen prefers to take the town to court as opposed to dealing with the town? Is that still an option?

Town Counsel McSherry – The Zoning Enforcement Officer issues you a cease & desist order. You have a right to appeal it to the ZBA. You need to exhaust your administrative appeal to the ZBA. If the ZBA files against you, you can take their decision to court within fifteen days of the notice being placed in the newspaper. You can appeal and at that point everything stays. Nothing happens then until the court deals with it and there’s a conclusion to that decision. Once there is a conclusion, the court can then implement its own orders or it comes back to where we started with the ZBA which may be several years down the road. At that point the fine could be issued by the issuing authority but you would have your day in court. Once the fine is issued you could again appeal the decision to the hearing officer and there would be more time spent in court.

There was a motion made by Steven Thornquist and duly seconded bo vote by written ballot.

J. Foley – We are all concerned residents of the Town of Bethany. Why can’t we stand up and have our vote counted?

S. Thornquist - I have a right to vote and I have a right for that vote to be kept secret as we do on election day. There are neighbors here that may have issues with other neighbors and it would not be fair to force them to vote in public.

The vote was taken by written ballot – In favor of amending the Land Use ordinance - yeas – 70; nays – 55. Passed.

A motion was made and duly seconded to adjourn the meeting. The meeting was adjourned at 9:40 p.m.

Respectfully submitted,

Nancy A. McCarthy, CMC
Town Clerk