MINUTES OF THE BETHANY PLANNING AND ZONING COMMISSION REGULAR MEETING OF WEDNESDAY,
The regular meeting of the Planning and Zoning Commission was called to order at 7:04 p.m. in the Commission Meeting Room of the Bethany Town Hall, 40 Peck Road, Bethany, Connecticut.
The following Commission Members were present:
Kimberly McClure Brinton, Chairman
Michael Sullivan, Vice-Chairman
Michael Calhoun, Member
Donna Shea, Member
Doug Goldner, Member
Bradford Buchta, Alternate Member
Carol Lambiase, Alternate Member
Eric McDonald, Alternate Member
Also present were:
Hiram Peck, Planning Consultant
Peter Olson, Special Counsel
Isabel Kearns, Zoning Enforcement Officer
APPROVAL OF MINUTES
- It was moved by Calhoun and seconded by Sullivan to approve the minutes of the June 1, 2016, Regular Meeting, with the following amendment:
- Page 7, Fifth Paragraph, Fifth Bullet – Reads “Height of the wall. (Mr. Garcia stated slightly modified 6 inches or so.)” Change to “Height of the wall. (Mr. Garcia stated that plans would be modified that no wall be more than six feet.”
Voting for: Brinton, Sullivan, Calhoun, Shea.
- It was moved by Calhoun and seconded by Shea to approve, as submitted, the minutes of the June 1, 2016, Special Meeting/Site Visit/Hearing Continuation.
Sullivan and Goldner abstained.
Voting for: Brinton, Calhoun, Shea.
- It was moved by Calhoun and seconded by Sullivan to approve the minutes of the June 22, 2016, Special Meeting, with the following amendment:
- Page 3, Item 5), Twelfth Sentence – Reads “The Commission subsequently received a letter from Mr. Nafis dated Mary 23, 2016, in which he states that Mr. Garcia has addressed most of our issues. ” Change to “The Commission subsequently received a letter from Mr. Nafis dated May 23, 2016, in which he states that Mr. Garcia has addressed most of our issues.”
Voting for: Brinton, Sullivan, Calhoun, Shea.
- It was moved by Sullivan and seconded by Calhoun to approve the payment of $1,200.00 (monthly pro rata basis), for services rendered for June 2016, by Hiram W. Peck III, AICP, Planning Consultant.
Voting for: Brinton, Sullivan, Calhoun, Shea, Buchta.
- Letter from Isabel Kearns, Zoning Enforcement Officer, to Ms. Jossie Abraham of 55 Chelsea Circle, dated June 6, 2016, Re: Zoning Inquiry, home for sale with accessory apartment, 55 Chelsea Circle.
- 43 Atwater Road, Discussion with Derek Iwaszkiewicz regarding cutting, processing and selling wood –Present for this discussion was Derek Iwaszkiewicz. Mr. Iwaszkiewicz expressed his proposal of selective tree clearing at 43 Atwater Road and submitted a map of the staging area for the clearing of dead trees and selective trees and that he would be selling and delivering the wood.Hiram Peck, Planning Consultant, stated the regulations are not clear regarding selective tree cutting and this should not permitted as a commercial operation in a residential zone. Mr. Peck suggested a letter to be sent to Mr. Iwaszkiewicz listing what the Commission would allow under the regulations regarding hours of operation, truck trips to the property, etc.It was the consensus of the Planning and Zoning Commission that the Commission agrees the selective tree clearing operation is acceptable and the Zoning Enforcement Officer will follow up with a letter stating what the Commissions understanding is of this operation.OLD BUSINESS
- 4 Peck Road, Application #2016-002 submitted by James Sakonchick to obtain Site Plan Approval of “Set-Aside Development” for new construction of a 4 Unit Multi-Family Dwelling in accordance with CGS 8-30g –Member Goldner recused himself. Member Lambiase was seated as a voting member.Special Counsel Peter Olson submitted a draft motion. Commission members reviewed, discussed and proceeded to deliberate.It was moved by Calhoun and seconded by Sullivan to deny Application #2016-002 submitted by James Sakonchick for the reasons as stated in the draft resolution including the amendments made:
DECISION – JULY 6, 2016
APPLICATION NO. 2016-002 (JAMES SAKONCHIK, 4 PECK ROAD)
The Planning & Zoning Commission of the Town of Bethany hereby DENIES Application No. 2016-002, submitted by James Sakonchik (the “Applicant”), for property located at 4 Peck Road, Bethany, Connecticut (the “Property”, and the “Application”), for the reasons stated herein.
- The Commission has received the Application on remand from the Superior Court, following a memorandum of decision in the matter of Sakonchik v. Planning & Zoning Commission of the Town of Bethany, docket no. (LND) HHD CV 14 5038167 (S), dated December 2, 2015 (Quinn, J.T.R.) (the “Decision”).
- The Decision provided the Applicant an opportunity to submit a revised amended application within 60 days of the date of the decision, and directed the Commission to hold a hearing thereon and make evidentiary findings.
- In the absence of specific direction from the Court, the Commission has observed the requirements of General Statutes § 8-7d concerning public hearings and the deadlines for same.
- Accordingly, the Commission opened a public hearing on the Application on May 4, 2016, and continued it to June 1, 2016.
- On June 1, 2016 the Commission informed the Applicant that it was waiting for reports from its retained expert witnesses, and that the expert witnesses needed time to review new information which was provided on June 1, 2016 and during the public hearing held that night. The Commission requested that the Applicant grant an extension of time to conduct and conclude the public hearing, to the next meeting scheduled for July 6, 2016. The Applicant refused to grant any extension.
- On June 18, 2016, the Commission received expert reports and testimony based on evidence in the record of the public hearing, and deliberated on the Application.
Having reviewed the information presented during the public hearing and thereafter as permitted by law, including the information presented by the Applicant, the Commission’s expert witnesses and members of the public, the Commission makes the following evidentiary findings:
- The Application makes insufficient provision for the protection of the public and the property, buildings and inhabitants from risk due to fire, in that the proposed new building is not accessible to fire apparatus on all four sides. In particular, the rear of the building is at a higher elevation than the parking area, and the sides and rear of the building are proposed to be covered with grass or other vegetative material. Fire apparatus such as trucks with ladders cannot approach these areas of the building.
In reaching this conclusion, the Commission relies on the expert testimony provided by Rod White, Fire Marshal for the Town of Bethany, and Michael Katzmark, representative of the Bethany Volunteer Fire Department and the Town’s Water Resource Officer, in writing and in oral testimony. The Commission finds Mr. White’s and Mr. Katzmark’s testimony to be credible, and finds that there was no controverting evidence in the record.
- The proposed development fails to provide adequate water supply to fight fires for several reasons:
- The National Fire Protection Association promulgates standards for the establishment of water supply to fight fires. In particular, Standard 1142 requires that the local fire department develop the capability to deliver a calculated amount of water within 5 minutes of arrival of the first apparatus at the incident. (NFPA 1142 § 4.6.2).
- For developments which require between 2,500 and 9,999 gallons of water, Standard 1142 requires that water be available at a rate of 500 gallons per minute, but also permits the authority having jurisdiction to require greater capacity based on the hazard.
- The Town of Bethany has adopted Water Source Specifications which apply to residential properties, and pursuant to which the authority having jurisdiction requires that fire tanks (cisterns) be a minimum of 30,000 gallons in size. This size tank is based upon Annex A.7.1.5 to NFPA 1142, which provides for flow rates of 250 gallons per minute for two hours.
- Although there are surface bodies of water located in the vicinity of the Property, they are located more than 1500 feet away and cannot be relied upon to establish the required water supply within 5 minutes of arrival.
- As such, the Fire Department must rely on onsite water supplies and the carrying capacity of the fire apparatus of the Town. The testimony of Mr. White and Mr. Katzmark demonstrated that the water supply demands of the project exceeded the current capacity of the Town’s fire apparatus.
- Based upon the expert testimony provided by Mr. White and Mr. Katzmark, the proposed development requires approximately 9,000 gallons of water supply. Based on the Town Water Source Specifications, Mr. White and Mr. Katzmark recommended that the Application be revised to provide a 30,000 gallon fire suppression tank to meet these firefighting needs. This would permit the fire department to arrive on site and establish 500 gallons per minute of water flow for one hour, or 250 gallons per minute for two hours.
The Commission finds that, based on the recommendation of Mr. White and Mr. Katzmark, the installation of a 30,000 gallon fire tank would meet the water supply necessary to adequately fight fires in the development.
In reaching this conclusion, the Commission relies on the expert testimony provided by Mr. White and Mr. Katzmark, in writing and in oral testimony. The Commission finds Mr. White’s and Mr. Katzmark’s testimony to be credible.
The Commission reviewed the calculations provided by Mr. Sakonchik, and finds that those calculations do not take into account that the center units in the proposed building have multiple exposures, which increases the water supply requirements. As such, the Commission finds that Mr. Sakonchik’s testimony on this point is not credible.
The Commission finds that the NFPA requirements relied upon by Mr. White and Mr. Katzmark provide the most accurate and protective standard of required water supply, and reflect the same requirements which the Commission applies to subdivisions of the same size (five housing units).
- The Commission finds that protection of persons and property from fire hazard is an obvious substantial public interest in health and safety, and that the need for affordable housing in the Town of Bethany clearly does not outweigh this interest.
- The proposed development fails to make adequate provision for public traffic safety, in that the sight lines at the proposed driveway are insufficient. In reaching this conclusion, the Commission relies upon the written report and email update provided to it by its expert, James Bubaris, and finds his testimony to be credible. In particular, Mr. Bubaris notes that
- The sight lines measured by the applicant’s expert were measured at a distance of 10 feet back from the intersection of the driveway with Peck Road, instead of 15 feet back as is the industry standard;
- The traffic speed measurements provided by the applicant’s expert were measured at the driveway intersection with Peck Road itself and as such are lower than other traffic speed measurements provided by the applicant. The higher numbers are more realistic since they represent the point at which oncoming traffic would first be observed; and
- While the subdivision regulations of the Town of Bethany do provide fixed sight distance requirements for subdivision intersections, the application does not propose a subdivision or a subdivision road. These requirements do not directly correlate to the Application since (i) there are sharp inclines near the driveway (ii) the driveway is very close to an existing intersection and (iii) the approach speeds have more of an impact on sight lines than the general conditions assumed by the subdivision regulations.
The Commission finds that the expert testimony provided by Mr. Hesketh in his traffic study was credible and valuable to the commission. However, the deficiencies noted by Mr. Bubaris precludes the Commission from finding that the proposed development makes adequate provision for public traffic safety.
In addition, members of the Commission stated that, in their experience, the proximity of the Property to Bethany Community School (located less than 1/5 mile from the Property) and the Property’s location on the main transportation route to Amity Regional Middle School, results in the presence of school buses on Peck Road before, during and after school hours. None of the traffic reports addressed the effect of the school buses on traffic in the area, including school bus stops, and the impact of the deficient sight lines on the safe transportation of students. The Commission finds that the negative impacts from deficient sight lines are exacerbated by the presence of school buses.
- The Commission finds that protection of persons and property, both on site and on town roads and state highways from deficient sight line conditions is an obvious substantial public interest in health and safety, and that the need for affordable housing in the Town of Bethany clearly does not outweigh this interest.
REASONS FOR DENIAL
Based on the evidentiary findings stated above, the Application is denied for the following reasons:
- The Application makes insufficient provision for the protection of the public and the property, buildings and inhabitants from risk due to fire;
- The proposed development fails to provide adequate water supply to fight fires;
- The proposed development fails to make adequate provision for public traffic safety, in that the sight lines at the proposed driveway are insufficient.
POTENTIAL FOR REASONABLE CHANGES
General Statutes § 8-30g requires that the Commission determine whether the public interests identified above as reasons for denial can be protected by reasonable changes to the affordable housing development.
The Commission finds that it is possible that these public interests could be protected by the following changes:
- The regrading of the land around the proposed new building and the installation of ground cover which is (i) sufficiently close to the building (ii) capable of supporting fire apparatus in all weather conditions and (iii) can be reasonably accessed by fire apparatus with limited turning radii;
- The installation of a fire tank with 30,000 gallons of capacity to be used as a water source to fight fires; and
- The relocation of the site driveway as far to the west along Peck Road as possible, together with regrading and vegetation removal to provide sight lines at 15 back from the intersection of the site driveway and Peck Road.
However, the Commission finds that these changes would require a substantial revision to the site plan, and as such they cannot be considered reasonable changes which would protect the public interests identified above. In essence, the plan would have to be completely reworked.
Further, it must be noted that throughout this public hearing process, the applicant was extremely resistant to any suggestions from the Commission and its experts as to potential revisions to the project, and, at times, was outright hostile. The Applicant represented himself as the property owner before the Commission, and acted as the project’s civil engineer, land surveyor, and architect. The lack of any additional professional expertise provides no peer review on the Applicant’s work and representations. The Commission believes that these circumstances led to the Applicant’s refusal to engage in a give and take with the Commission, as directed by the Court.
The Commission also finds that the plans submitted to it were sloppy and incomplete, in various places listing conflicting and erroneous information such as the number of bedrooms in the existing home and the size of the approved septic systems. Further, the existing home continues to lack a certificate of occupancy.
The Commission cannot find that the Applicant would be amenable to the substantial changes which would be required, nor would he be cooperative in implementing these changes.
As such, the Commission cannot approve the Application as presented.
During the course of the hearing, the Commission noted a number of additional deficiencies in the proposed development and the Application which could be rectified through conditions of approval and performance conditions to be observed during the construction and approval process. Since this decision is a denial and not an approval, there is no opportunity to include these items as conditions of approval. Nevertheless, the Commission believes strongly that the following items remain unaddressed:
- The existing driveway on the Property, located in the southeast corner near the intersection of Peck Road and State Route 63 (Amity Road) must be discontinued, a curb installed and the existing pavement removed and replaced with grass or other vegetative cover before any certificates of occupancy can be issued. This driveway presents a substantial danger to public traffic safety.
- The affordability plan continues to be substantially deficient. Although many issues can be resolved through a condition that the final plan be in a form satisfactory to Commission counsel, the applicant continues to resist two important issues:
- The Commission strongly believes that a third party administrator must be appointed to review the qualifications of any tenant or owner of affordable units, and to provide annual reporting to the Town certifying compliance with the requirements of General Statutes § 8-30g. This is particularly important with a very small development owned by a non-professional.
- The affordability plan needs to address the issue of whether the units will be for rent or for sale. It does not do so in a clear manner in its current iteration. It is possible to provide calculations and fair housing marketing policies for both, but it does not do so in a clear manner at the present time.
- The applicant must provide copies of proposed common interest community documents to the Commission for review by its counsel prior to commencement of construction. This will enable the Commission to ensure that certain important requirements are observed, particularly concerning use of the garages and parking spaces, street parking, sharing of the septic systems and common areas, and the affordable housing requirements.
Goldner recused himself.
Lambiase was seated as voting member.
Vote 5 to 0.
Voting were: Brinton, Sullivan, Calhoun, Shea, Lambiase.
- Discuss future Land Use Plan (possible insertion in Town Plan of Conservation & Development) – Hiram Peck, Planning Consultant, suggested the Commission have a special meeting to discuss creating a village district, etc. Tabled.
- Discussion regarding the rewriting of the current Zoning Regulations – Hiram Peck, Planning Consultant, suggested continuing with discussion at a special meeting. Mr. Peck will submit information regarding amendment for signage in August. Tabled.
ZONING ENFORCEMENT OFFICER’S REPORT –
Isabel Kearns, ZEO, briefly discussed Grieger violations and complaint received regarding Freezer Hill Mulch on Carrington Road.
Member Lambiase recapped the Road Safety Audit for a bike trail on June 23, 2016.
It was moved by Sullivan and seconded by Calhoun to adjourn the regular meeting at 8:45 p.m.
Voting for: Brinton, Sullivan, Calhoun, Shea, Goldner.
Antonia R. Marek, Clerk
for the Planning and Zoning Commission
JULY 6, 2016
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