REGULAR MEETING   Thursday, SEPTEMBER 4th, 2008

EAST LYME ZONING COMMISSION

MINUTES

The East Lyme Zoning Commission held a Regular Meeting on Thursday, September 4, 2008 at the East Lyme Town Hall, 108 Pennsylvania Ave., Niantic, CT.

PRESENT:                 Mark Nickerson, Chairman, Rosanna Carabelas, Secretary, Ed Gada, Steve Carpenteri, Norm Peck, Marc Salerno                         

ALSO PRESENT:       Attorney Theodore Harris, representing the Applicant

                                 Jonathan Katz, Applicant

                                 Peter Springsteel, Architect, representing the Applicant

                                 William Dwyer, Alternate

                                 William Mulholland, Zoning Official

                                 Rose Ann Hardy, Ex-Officio, Board of Selectmen

ABSENT:                   Bob Bulmer, Alternate, Gregory Massad, Alternate

1.       Call to Order

Chairman Nickerson called this Regular Meeting of the Zoning Commission to order at 7:43 PM after the three (3) previously scheduled Public Hearings.

Pledge of Allegiance

The Pledge was previously observed.

Public Delegations

Mr. Nickerson called for anyone from the public who wished to address the Commission on subject matters not on the Agenda.

Linda Lipka, 11 Hillwood Drive, Niantic said that she wished to speak on the Gateway as she had come to the Gateway meeting but did not speak at it. She said that she also attended the mandatory water meeting and wrote and editorial to the New London Day that was not printed. She said that she has addressed that fact with the reporter from the Day who is here this evening who told her that due to the volume of editorials that they receive that they are not able to print all of them. She has been a taxpayer for 46 years. She has always had well water and never had to conserve water until she moved to Hillwood Drive where she has her own septic system but is on city water. She said that she thinks that they have forgotten that it is the taxpayer who will be paying for Gateway to have the water. On August 10, 2008 an editorial written by Paul Formica was published. It said that once the Gateway Phase 1is complete that it would generate 1.5M tax dollars for the Town. She said that she does not want her taxes to go up. She said that she also heard that 10 houses would be displaced on Church Lane and other areas by this project and she works for Pfizer and knows very well about eminent domain. She said that she and the residents of this Town are the tax base now and she does not think that they need the development as it will only make the taxes go up. Money is great – but at what cost? She is not able to water her garden, flowers or wash her car on the weekends but the wealthy weekenders who come from other states and have boats can wash their boats on the weekends; but she, as a taxpayer cannot water her vegetable plants or garden. She said that she went to a big Water & Sewer meeting recently where the Maguire Group gave a 2˝ hour presentation and that not one of the members of this Zoning Commission, who act as the Aquifer Protection Agency for the Town was present at this meeting. The water regionalization project would cost some $13M and she spoke with one of the presenters, Dan Meade after the presentation who personally told her that desalination is the way to go. 

Mr. Nickerson thanked Ms. Lipka for her comments and said that he would address some of them. The Gateway does not involve any eminent domain and what Ms. Lipka has heard were scare tactics that were put out by some dissenters. Regarding the Water & Sewer Commission meeting, he said that he meets with Paul Formica who is the Chairman of that Commission and that they routinely discuss these issues. Also, the Aquifer Protection Agency is separate from the Water & Sewer Commission and from the Zoning Commission and has different charges. Regarding the Gateway, the Zoning Commission made its’ decision based on Mr. Formica’s comments that they are looking for a long-term solution to the water issue and not just a temporary fix for the short-term summer shortage. There is a lot of land in this Town, with very little for commercial development (3%) and there has to be growth and people can and do develop their land. The goal is to try to have it be the best that it can be, in line with the regulations.

Mr. Mulholland noted to Ms. Lipka that this Commission as a Zoning Commission acts separately from the Water & Sewer Commission and that when this Commission acts as the Aquifer Protection Agency for the Town (as it has since 1973) that it does not act as the Zoning Commission. He added that with the newly created Level A Mapping that they would be surprised over what the new Aquifer Protection area is as it has shrunk in size in most cases.

Mr. Salerno added that while the Gateway project has received some approval from Zoning that they will need to apply separately to the Water & Sewer Commission and that application would also have to receive approval. Lastly, he said that he wished to clarify that as a Zoning Commission that they vote based on the Zoning Regulations and not on the tax base.

Regular Meeting

1.    Application of the Town of East Lyme Parks & Recreation Commission for a Special Permit for a press box for Men’s softball at the Bridebrook Park property.

Mr. Nickerson noted that they had opened and continued this Public Hearing as the request of the applicant.

2.    Application of Jeffrey A. McNamara for a text amendment to the East Lyme Zoning Regulations Section 4.1.3 “Nursery or Greenhouse provided they are not less than 100 feet from any lot line.”

Mr. Nickerson said that they had just noted that the applicant has withdrawn this application.

3.    Application of AHEPA 250 INC to amend Section 25.5 of the Zoning Regulations. Section 25.5 Table of Minimum Controls for Specific Special Permit uses. AHEPA 250 INC proposes to modify the density requirement for Section 202 Housing for the Elderly Multi-Family/Multi-story by reducing the lot area requirement from 4000 square feet to 2500 square feet for each efficiency unit and from 6000 square feet to 4000 square feet for each two-bedroom unit.

Mr. Nickerson noted that they had just continued this Public Hearing at the request of the applicant.

4.    Application of Peter J. Springsteel, Architect, for Ron & Jean Giannamore of 18 East Shore Drive, Niantic for a Coastal Area Management Site Plan Review for property identified in the application as 18 East Shore Drive, Niantic, for demolition of existing structure and construction of a new single family home per plans.

Mr. Nickerson asked Ms. Carabelas, Secretary to read the correspondence into the record.

Ms. Carabelas, Secretary read the following correspondence into the record:

¨       Letter dated 9/4/08 to EL Zoning Commission from Wm. Mulholland, Zoning Official – Re: 18 East Shore Drive CAM Application - noting the applicant intends to demolish an existing structure and construct a new one and that the Commission must determine whether or not the proposed activity is consistent with all applicable coastal policies and standards and whether or not potential adverse impacts of the proposed activity on both coastal resources and future water dependent development activities are acceptable.

Mr. Nickerson called upon Peter Springsteel, Architect representing the applicant.

Mr. Springsteel submitted Exhibit 1 – a copy of the BPBA approved Zoning Permit dated 5/30/08 and 7/3/08 as the area is located in a private beach community with its own zoning; and Exhibit 2 – a close up map showing the location on East Shore Drive to the neighbors and the water; for the record. He explained that they would be taking down the existing two-story structure and rebuilding it. The area is a dense neighborhood and has been developed extensively. They will follow the existing footprint and the new structure would meet the wind requirements. There are no flood issues. The coastal resources are a rocky shorefront and beach and dunes and they are not building in that area. They will also install a double silt fence along the sides of the property to hold anything back. The rainwater from the roofs is absorbed by the lawn areas at present and will be dealt with in the same way with the new house. They are served by public water and sewer.

Mr. Nickerson asked if the present house is on a slab.

Mr. Springsteel said that it is on a masonry/rubble base and not a slab. The new garage will have a slab under it.

Mr. Nickerson asked if there would be any storing of dirt, etc. on the site.

Mr. Springsteel said no, there is no room to store anything on the site and the rubble would go straight to a truck to haul it away.

Mr. Carpenteri asked if it would be the same size house.

Mr. Springsteel said that the new house would be about 200’ larger.

Ms. Carabelas asked if the retaining wall would be rebuilt.

Mr. Springsteel said that they are not touching the retaining wall and that they are about 30’ away from it with the excavation so it would not be undermined. They will have a silt fence and erosion control measures in place.

Mr. Nickerson said that it appears very close to a neighboring property.

Mr. Mulholland said that it is BPBA zoning and that they deal with that.

Mr. Gada asked if there was any research done regarding a 100 year storm so that the basement would be kept dry.

Mr. Springsteel said that they are located outside of the 100-year flood area and that they can do a whole basement. He added that if they were not outside of the 100-year flood area that they would not be able to do the basement at all.

Mr. Salerno asked that on the front of the CAM Application that the acreage of the parcel be changed to 5,447 sf to be consistent with the rest of the application and the lot size.

**MOTION (1)

Mr. Salerno moved to approve the application of Peter J. Springsteel, Architect for Ron & Jean Giannamore of 18 East Shore Drive, Niantic for a Coastal Area Management Site Plan Review for property identified as 18 East Shore Drive, Niantic, to demolish the existing structure and construct a new single family home as the application is consistent with all-applicable goals and conditions of the CAM Act and the applicant has taken all reasonable measures to mitigate any adverse impacts of the proposed activity on both coastal resources and future water dependent uses.

Mr. Gada seconded the motion.

Vote:  6 - 0 – 0.  Motion passed.

5.    Request of Theodore A. Harris, Attorney for Walnut Hill Country Club, for extension of time of Special Permit/Site Plan for Walnut Hill Golf Course.

Mr. Nickerson said that Attorney Harris was present to update them on this.

Attorney Theodore Harris said that this Commission granted a one year extension under Section 12A3.5 which allows them to grant such extensions for three specific permits – the golf course property, golf course housing and the golf course accessory housing. He noted that the Conservation Commission, last year extended their permits for this application for five (5) years time and that Montville’s Conservation Commission also did the same with a five (5) year extension. This is the only one that has a one-year time frame. He said that they were supposed to have the DEP permit on the community septic some time ago and passed out letters regarding the permitting process. These were entered into the record as Correspondence 1 – Letter from DEP Sanitary Engineer Antoanela Daha to Bill Mulholland, Zoning Official regarding the history of the permit application with the CT DEP beginning in 2005 and; Correspondence 2 – Letter dated 9/3/08 from Korth Engineering to Jonathan Katz outlining the DEP approval status. This correspondence shows that the permit was supposed to be issued by now. The issue is that nothing can be done on this site until the community septic is permitted and no one would think of starting work without the community septic permit allowing them to move forward.

Mr. Nickerson asked about the phases of the project.

Attorney Harris said that there would be 70 SU-E units near the street and; 40 units that cannot be built without the golf course.

Mr. Nickerson asked if the septic would be able to cover the 110 units.

Attorney Harris said yes, it would cover the units as well as the clubhouse which was scaled down.

Ms. Carabelas asked if they are putting the horse before the cart here with the special permit.

Attorney Harris said that the DEP has a written policy that they will not look at the applications unless they have an approved project.

Mr. Mulholland asked Attorney Harris if his testimony is that this permit will expire on the 20th of this month.

Attorney Harris said yes.

Mr. Nickerson asked when the special permit approvals were granted previously.

Attorney Harris said that they were granted previously three times and that he wished to clarify that the DEP required data prior to undertaking any of their review activities.

Mr. Nickerson said that his concern is that the golf course could never be built.

Mr. Mulholland suggested that they could extend any one of the three special permits and not all three if that is what they want to do.

Attorney Harris said that while that could be done that it does not seem fair to change the permitting process now when they have permitted all three previously.

Jonathan Katz, 38 Holmes Road, owner and applicant said that he is committed to making this happen. He said that the 30,000 gallon wastewater system is cost prohibitive if they were to develop only the 70 units as the size of the system is overkill for a project of this size. If he does not have all the permits then he could not get the financing necessary to do anything as the project does not carry itself on the 70 units. He said that he is obviously not happy that it has dragged on this long.

Mr. Nickerson said that this is high density for the area and that they were sold a nice country club package and it has been scaled down and he is hopeful that it will get built as they are closing golf courses everywhere.

Mr. Katz said that the golf course layout has not changed. The clubhouse design was not economically feasible and he said that he was not aware of that at the time that he proposed it. His family has lived here since 1951 and he lives on this property and is not a ‘fly-by-night’. He works locally in the area. While they are closing golf courses in the Myrtle Beach area, he said that is because there is one on every corner. A partial extension here would kill the entire project – there is no way to get there from ‘here’ without permits.

(Note: 8:30 PM – Ms. Hardy arrived)

Mr. Peck said that he would love to grant this but he wants to know how to get around the sub-paragraph on ‘commencing work’.

Attorney Harris said that what it means is that it is an extension to time in which to start work.

Mr. Katz explained the process and how the DEP had said that the approval is forthcoming and they wanted a manual/operating agreement.

Ms. Carabelas said that she does not understand why other developers do not have this problem.

Attorney Harris said that the only other one who has applied with the same type of system is Darrow Pond and that this process is not typical of most applications as they do not apply with community septic.

Mr. Peck said that he personally has had experience with the DEP and they are ‘something’ to deal with and Mr. Katz is not exaggerating on that. It would be cruel and unusual to make him suffer; he said that they supported this originally and he feels that they should continue to do so.

Mr. Carpenteri said that he agrees with Mr. Peck; they liked the project before and they should continue to support this.

Mr. Nickerson said that he thinks that this is there opportunity to change the vision and that if they hold on to something for too long that this is what happens.

Mr. Katz said that he did not ‘hang on’ to anything and that he has done all that he could to move this process along faster – all that is humanly possible to do.

Mr. Nickerson said that others have done it.

Mr. Salerno asked Mr. Katz when he expected to have the DEP permits.

Mr. Katz said that it appears that it should be sometime in October based on the letters that were submitted earlier as correspondence.

Mr. Salerno said that he is not convinced that 70 units up there would sell and that he would not want to see 70 units just sitting up there – he would like to know if they approve this – when they get the DEP permit.

Mr. Mulholland said that they could possibly do a six month extension.

Mr. Salerno said that he just would like to know when they get the permit from the DEP and that otherwise he would agree with Mr. Carpenteri and Mr. Peck.

Ms. Carabelas said that the financing of the project has her concerned –

Mr. Mulholland said that with all due respect that financing is not under their jurisdiction.

Attorney Harris said that with the DEP permit that thing simply could not happen in three months time.

Mr. Katz said that financing alone takes three months. To Ms. Carabelas he said that this is the project that they wanted done and that this is what it takes to get it done, he cannot humanly move it faster.

Mr. Gada said that he has also had working knowledge/experience with the DOT and DEP with the lanterns in Town and that everyone had to get involved to try to get it done. He said that he can very much understand Mr. Katz’s frustration. He said that in looking at Mr. Katz that he is either a good con artist or dedicated to getting things done with the powers that be in Hartford.

 Mr. Nickerson noted that it is of interest that they only have this parameter for the SU and SU-E and not for the more intensive projects in Town that could go on for much longer. He called for a motion.

**MOTION (2)

Mr. Carpenteri moved to approve the request of Theodore A. Harris for Walnut Hill Country Club for one year extension of time for all three (3) Special Permits/Site Plans for the golf course, active adult community and accessory housing on the golf course.

Mr. Gada seconded the motion.

Vote:  4 – 2 – 0.  Motion passed.

For: Mr. Carpenteri, Mr. Peck, Mr. Gada, Mr. Salerno

Against:  Ms. Carabelas, Mr. Nickerson

6.    Application of Theodore A. Harris, agent for Village Crossing of Niantic LLC for approval of an Affordable Housing development, site plan and coastal area management site plan review to construct one hundred residential units (100) on property identified in the Application as Assessor’s Map 11.1, Lot 19; and –

7.    Application of Theodore A. Harris, agent for Village Crossing of Niantic LLC to re-zone from its existing zoning designation (RU-40 Residential) to Affordable Housing for property identified in the Application as Assessor’s Map 11.1, Lot 19.

Mr. Peck recused himself and was seated in the audience for this discussion and Mr. Nickerson seated Mr. Dwyer, Alternate at the table.

Mr. Nickerson said that he would like them to begin some preliminary discussion on this application this evening with the thought that they would be giving some direction to the Town Attorney so that he would be able to create some draft motions for them to entertain at their next meeting.

Mr. Mulholland noted that they also have the next meeting on September 18, 2008 for general discussion as the Town Attorney would be present then.

Mr. Salerno stated for the record that he is familiar with the record.

Ms. Carabelas said that she also has familiarized herself with the record. She noted that her concern is for the safety of the children and the site line.

Mr. Nickerson noted that there was another application within the Town that was denied for a lack of harmony within the neighborhood and that he thinks that this is not the place to put this dense housing. While they do have an applicant who wants to do good for the Town, he does not think this is the area to do it in and he does not like the layout where the senior housing is located at the top of the hill. He said that he was also concerned that it was over-engineered with respect to run-off and said that it might actually improve what is there now. He thinks that the issue is one of location.

Ms. Carabelas said that the public safety access is not there.

Mr. Nickerson said that the Fire Marshal has approved that but he is not sure that a search and rescue operation could be done there.

Mr. Salerno noted that the applicant would have to apply to the Water & Sewer Commission for separate approval.

Mr. Mulholland asked that they review all of the notes, exhibits and minutes for the next meeting so that they can have a dialogue with the Town Attorney. He noted that the burden of proof lies with the Commission and that they can only base their decision on information that is particular to this record.

Mr. Dwyer returned to the audience and Mr. Peck was seated at the table.

8.    Approval of Minutes – July 31, 2008 – Special Meeting Minutes; August 7, 2008 - Public Hearing I & II Minutes;  Public Hearing III Minutes, Public Hearing IV Minutes and Regular Meeting Minutes

Mr. Nickerson called for discussion on, or corrections to the Commission’s Special Meeting Minutes of July 31, 2008.

Mr. Salerno asked on Page 4 where he is speaking that words be changed and added to that paragraph so that it reads as such:

‘Mr. Salerno said that he took a look at the acoustical report/study and that while studying electrical engineering, he studied acoustics and that he now does underwater acoustics. He looked at the report and while the math is ‘dead on’ and correct some of the assumptions are incorrect. ‘Shadowing’ loss was not specified; ’Shadowing’ is the sound absorption from trees. He said it seems to assure that the entire distance is full of trees, of which it is not. The study was done for 300’ from the closest property and the attenuation distances were based on a level grade while some properties are actually at a higher elevation which changes the calculations. He said that he was not sure if that was totally correct and that the fence material would have to be a dense material such as concrete block for the study to be accurate. Considering this, he said that he does think that the noise would be a nuisance. Also, the regulations state a ‘kennel’ and he said that doggie daycare is not a kennel as it would mean more vehicle trips per day for people dropping off and picking up rather than with a kennel where people would be leaving their pets for a week or two. He said that he could not approve this with the doggie daycare and that he thinks that based on the acoustic report that there would be a problem up there with the kennel.’

**MOTION (3)

Mr. Carpenteri moved to approve the July 31, 2008 Special Meeting Minutes of the Commission as amended.

Mr. Peck seconded the motion.

Vote:  6 – 0 – 0.  Motion passed.

Mr. Nickerson called for discussion on, or corrections to the Commission’s Public Hearing I & II Minutes of August 7, 2008.

Mr. Salerno asked that on Page 7 one third of the way down the page where Mr. Gerwick is speaking that regarded be changed to read regarded; and that on Page 8 about half way down on the page that where Mr. Gerwick is speaking that aero be change dot read zero.

**MOTION (4)

Mr. Gada moved to approve the Public Hearing I & II Minutes of August 7, 2008 of the Commission as amended.

Mr. Carpenteri seconded the motion.

Vote:  4 – 0 – 2.  Motion passed.

Abstained:  Ms. Carabelas, Mr. Salerno

Mr. Nickerson called for discussion on, or corrections to the Public Hearing III & IV Minutes of August 7, 2008 of the Commission.

**MOTION (5)

Mr. Carpenteri moved to approve the Public Hearing III & IV Minutes of August 7, 2008 of the Commission as presented.

Mr. Gada seconded the motion.

Vote:  4 – 0 – 2.  Motion passed.

Abstained:  Ms. Carabelas, Mr. Salerno

Mr. Nickerson called for discussion on, or corrections to the Regular Meeting Minutes of August 7, 2008 of the Commission.

**MOTION (6)

Mr. Carpenteri moved to approve the Regular Meeting Minutes of August 7, 2008 of the Commission as presented.

Mr. Gada seconded the motion.

Vote:  4 – 0 – 2.  Motion passed.

Abstained:  Ms. Carabelas, Mr. Salerno

Old Business

1.       Stormwater

There was nothing new to report.

2.       Subcommittee – Niantic Village – CB Zones (Mark Nickerson, Marc Salerno & Norm Peck)

There was no report.

3.       Subcommittee – Adult Uses (Rosanna Carabelas)

Ms. Carabelas passed out a draft of some information that she had taken from other Towns and a recent Supreme Court Case from the Town of Berlin where the Town’s position was upheld.

Mr. Nickerson asked that they review the information for the next meeting.

4.  Subcommittee – Rezoning - Northern Areas of East Lyme & Scenic Roads – (Marc Salerno, Mark Nickerson & Norm Peck)

Mr. Nickerson said that this subcommittee would be specifically on Scenic Roads and that they would put together a second subcommittee on the Northern end of Town.

Mr. Salerno noted that at the next meeting of the subcommittee that they would hear from Attorney O’Connell on the Scenic Roads.

New Business

1.       Any business on the floor, if any by the majority vote of the Commission.

There was none.

2.       Zoning Official

Mr. Mulholland reported that the recent dog kennel decision has been appealed and that they have prepared the return of record. McDonald’s and CVS are moving forward, the Tri-Town façade is being done and 38 Hope Street is getting some pavement and landscaping started. The Irish Pub is beautiful inside and moving along..

3.       Comments from Ex-Officio

Ms. Hardy reported that a traffic light will be installed at the intersection of Giants Neck Road with Rte. 156 as they have received State approval. She said that she would doubt that they would approve another one on that road. She said that they also discussed the right to farm at the recent Board of Selectmen meeting and that they are working on a right to farm ordinance to protect farms and to keep them going. This would include issues such as farming odors being acceptable in those areas.

4.       Comments from Zoning Commission liaison to Planning Commission

There was no report.

5.       Comments from Chairman

Mr. Nickerson said that he had no further comments.

6.       Adjournment

Mr. Nickerson called for a motion to adjourn.

**MOTION (7)

Mr. Salerno moved to adjourn this Regular Meeting of the East Lyme Zoning Commission at 10:30 PM.

Mr. Gada seconded the motion.

Vote:  6 – 0 – 0.  Motion passed.

Respectfully submitted,

Karen Zmitruk,

Recording Secretary