HomeMy WebLinkAbout5578-12112013_ZBA_Special-Meeting-Minutes1 | Page Zoning Board of Appeals Special Meeting Minutes
Wednesday, December 11, 2013
Town of Montville Zoning Board of Appeals
Special Meeting Minutes for Wednesday, December 11, 2013
7:00 p.m. – Town Council Chambers – Town Hall
1. Call to Order
Chairman MacNeil opened the Special Meeting of the Zoning Board of Appeals at 7:05 p.m.
2. Roll Call
Present were Board Members Adams, Aquitante, alternate Freeman, Lakowsky, MacNeil. Board
Member/alternate Wittkofske was absent. Also present were Town Attorney Michael Carey and
Assistant Town Planner/Zoning Enforcement Officer Tom Sanders.
3. New Business
a. Election of Officers
Motion made by Board Member MacNeil, seconded by Board Member Aquitante, to keep the
same slate as the previous year. Discussion: Board Member Lakowsky commented that she
was very satisfied with the slate. Voice vote, 5-0, all in favor. Motion carried.
Chairman MacNeil welcomed new Board Member Joe Aquitante to the Zoning Board of Appeals.
4. Public Hearings:
a. Paul E. Chase 213-ZBA-2: An application for an appeal of the decision of the Zoning
Enforcement Officer for the issuance of a Zoning Permit to Green Falls Associates, LLC for a
three-bedroom home on the property located at 310 Cherry Lane, (Oakdale) Montville, CT. As
shown on Assessor’s Map 53 Lot 3.
Chairman MacNeil opened the Public Hearing. He stated that, because the issue concerns the
action of the Zoning Enforcement Officer, Mr. Sanders will not be participating in the meeting
and Town Counsel Mike Carey will be assisting the Board.
Assistant Town Planner/Zoning Enforcement Officer Sanders distributed a packet containing
the applications for the property in question.
Town Attorney Carey had no comments or questions at this time regarding the application.
Atty. Jon Chase introduced his client, Appellant Paul Chase, welcomed Mr. Aquitante to the
Board, and clarified the matter regarding Chairman MacNeil’s previous recusal from the case.
Chairman MacNeil stated that he no longer has a personal financial interest in the property and,
while he is not planning to recuse himself, offered to do so should Atty. Chase view his
involvement as a conflict of interest. Atty. Chase was satisfied and agreeable to proceeding
with the case at hand without the recusal of Chairman MacNeil.
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Wednesday, December 11, 2013
Atty. Chase established that the Appellant has met the burden of aggrievement regarding the
property in question by asking the Appellant to verify the submitted uncertified copies of the
Deed, the location of the property, and an Affidavit. He also produced a copy of the Town’s
Vision assessment card for the property in question.
The issue of the timeliness of the appeal from the date of issuance of the zoning permit was
addressed by Atty. Chase. While many permits or approvals require the publication of a
Notice of Issuance, this particular permit is not required to do so. In accordance to the State
Statute, an individual has 30 (thirty) days to appeal any decision, order, or action of the Zoning
Enforcement Officer from the date of the Notice of Issuance. He cited the case of Cockerham
vs. Town of Montville Zoning Board of Appeals in which Judge Purtill established a law
regarding what, specifically, would constitute the Notice of Issuance when a public or personal
notice has not been issued. He determined that an event(s) that could have a variety of
meanings, e.g., clearance of property, surveyor’s stakes, would not constitute a Notice of
Issuance. As outlined on Mr. Chase’s affidavit, his application of appeal was submitted when
he witnessed the clearing of the property, prior to any Notice of Issuance as outlined by Judge
Purtill and well within the 30-day timeframe. He also sent a certified letter notifying the Green
Falls Associates, LLC, Manager Peter Gardner of the appeal. Nevertheless, activity on the
property continued, resulting in the eventual construction of the home.
Atty. Chase provided an outline of the court decisions regarding the use of the property in
which the variance application by Green Falls Associates, LLC, was denied by the Zoning
Board of Appeals, a decision which was subsequently upheld by both the New London
Superior Court and Appellate Court. Prior to the final decision by the Appellate Court, the
Planning & Zoning Commission held a Special Meeting on November 29, 2011. One of the
items on the agenda concerned revisions to Section 4.13.6 of the Town’s Zoning Regulations
regarding lot widths. A discussion ensued about the handling of pre-existing non-conforming
lots, which have very little frontage, but plenty of area ensued between Town Planner Marcia
Vlaun, Atty. Harry Heller, and the Commission. The revision, which was unanimously passed
by the Commission, affected this particular property and became effective December 15, 2011,
reads as follows: “4.13.6 Delete the word Frontage and Add the words Lot Width, Revise lot
width and Add new lot widths 76 to 85 ft. and 86 to 95 ft.”
The Commission took a short break at 8:13 p.m., and the meeting resumed at 8:20 p.m.
Atty. Chase questioned the use, definition, and interpretation of the word “or” as used in
Regulation 4.13.6 which states that non-conforming lots with “a total area less than the
minimum required in the district or a lot width which is less than the minimum lot frontage
required in the district may be used for the single family detached residences provided such
lots shall conform to use regulations and all other applicable setback requirements of the
district or the Table . . .” Atty. Chase stipulated that the property in question is a non-
conforming lot, having less than the required area and frontage and, as such, the regulation has
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Wednesday, December 11, 2013
been applied to this property. He continued to discuss the interpretation of the word “or”,
citing Supreme Court Case decisions regarding the proper interpretation of legislative language
and determined that the legislative intent of the word “or” in this case is defined as meaning
“or”, not “and”, or “and/or”. As such, the properties discussed in the regulation apply to lots
with either characteristic, not both.
He further noted that the applicant, Green Falls Associates, LLC, with the representation of
Atty. Heller, applied for the zoning permit with full knowledge and awareness of the zoning
rules and regulations. He noted Atty. Heller’s statement during the November Planning &
Zoning Commission Special Meeting that the revision to Regulation 4.13.6 was necessary in
order to allow the development of non-conforming lots. He reiterated the decision by the New
London Superior Court and the Appellate Court to uphold the decision by the Zoning Board of
Appeals to deny the variance application by Green Falls Associates, LLC, for the property. He
reminded the Commission that the issue at hand is an appeal of the Zoning Permit issued by
the Zoning Enforcement Officer, who, he noted, has also been legally represented by Atty.
Heller in a variety of other legal matters. While he is not suggesting that Atty. Heller recuse
himself from the case nor suggesting that anything improper is occurring, Atty. Chase felt that
an underlying reason may deem his continued involvement in the case as biased.
Referring to Zoning Regulation, Section 4.5, which states that all zoning permits for site plans
not included in Section 18 of the Zoning Regulations “shall expire one (1) year after the date of
approval if all permitted work has not been completed”, Atty. Chase noted that the Zoning
Permit was issued on February 6, 2012 and the clearing of the property, i.e., notification of the
issuance of a zoning permit, was witnessed by the appellant in August 2013, well past the
expiration date of the permit. He contrasted the situation with that of the Cockerham case in
which construction began, but was not completed, within the one-year period. The Regulation
does not mention any policies relating to the renewal or extension of a permit nor is there any
adequate evidence that a renewal or extension of this permit was issued. As such, he felt that
the matter should be referred to the Zoning Enforcement Officer for further action.
The Commission took a short break at 9:02 p.m., and the meeting resumed at 9:07 p.m.
A short discussion ensued regarding the remaining length and possible continuation of the
meeting due to Board Member Aquitante’s possible need for departure to tend to his daughter’s
needs who was in attendance. It was decided that the meeting will continue and, should Board
Member Aquitante need to depart, he will listen to the audio recording of the remainder of the
meeting, the hearing will be kept open, and a decision will be made at the next meeting.
Chairman MacNeil asked if there was anyone present who would like to speak in favor of the
appeal.
Assistant Planner/Zoning Enforcement Officer Mr. Sanders submitted the Zoning Permit
package as issued for the property.
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Wednesday, December 11, 2013
Addressing Atty. Chase’s arguments, Atty. Harry Heller, 736 Route 32, Uncasville,
representing the property owner Green Falls Associates, LLC, argued that the appeal, as filed,
is fatally deficient because it does not indicate the reason for the appeal making it difficult for
the Zoning Enforcement Officer, property owner, or public to intelligently prepare a
presentation for this hearing. He also noted that, while notices of the hearing sent to Paul and
Johann Chase and Helge Butler were introduced into the record, notice was not provided to the
property owner of the same as required by due process. Lastly, Atty. Heller felt that the Board
lacked the subject matter jurisdiction to hear this appeal. In relation to Atty. Chase’s argument
regarding the issue of timeliness, the proceedings of the Cockerham case, and the publication
of notice, he stated that CT Jurisprudence makes a distinction between constructive notice,
which is subject matter jurisdictional, and actual notice, which is not. Referring the Section 8-
3, Sub-section (f) regarding the issuance, notification, and appeal of a permit and Section 8-7
regarding the filing period and specification of the grounds for appeal, Atty. Heller stated that,
in accordance to the Statutes, a Notice of Issuance of the Zoning Permit was published on
March 8, 2012 in The Montville Times, a weekly publication with a substantial circulation, as
well as in The Day newspaper on March 2, 2012 for the Zoning Permit, which was issued on
February 6, 2012. As such, the appeal period had expired well before the appeal was made in
August 2013 and the Board does not have the subject matter jurisdiction to entertain the
appeal.
Atty. Heller addressed the issue of the language of Section 4.13.6 of the Zoning Regulations.
While the regulation was amended, it remains, substantially, in its same form. Two (2)
changes were made in the amendment: (1) the concept of lot width rather than lot frontage as a
determining factor for relief from the side yard setback requirements and (2) the addition of
two (2) categories in the table specifying lot width instead of lot frontage and the correlating
minimum side yard width requirement. The language cited by Atty. Chase regarding the use of
the word “or” was not changed and was in the original regulation dating back to 1986 and,
possibly, 1970, when the Zoning Regulations were originally adopted in the Town of
Montville. The language has been consistently interpreted and the Planning & Zoning
Commission and the Zoning Enforcement Officer have issued a countless number of permits
based on the regulation.
Referring to the Zoning Permit, Atty. Heller called attention to the Construction Permit
Approval indicating the signature of Zoning Enforcement Officer and dated January 10, 2013.
And, although this is outside the scope of the appeal, he noted that the Permit had been
renewed as are many other permits for single-family residence within the Town of Montville
that have not been completed within the one-year period.
Chairman MacNeil asked if there was anyone present who would like to speak regarding the
appeal.
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Wednesday, December 11, 2013
Atty. Chase addressed the issues introduced by Atty. Heller. He questioned the validity of the
so-called permit renewal and felt that the interpretation of the simple stapling of a signed and
dated form to the permit to constitute a renewal was fallacious. He reiterated that there are no
regulations regarding the renewal process of a Zoning Permit and noted that, in the Cockerham
case, the Zoning Enforcement Officer issued a new permit when the previous permit had
expired. Regarding the language of Section 4.13.6, Atty. Chase stated that he did not claim
that the language had been revised, but that the amendment extended the provisions of that
language to include two additional zones and did so without any clarification as to the
legislative intent of the term. Regarding the fatal deficiency of the completed appeal
application form, he pointed out that the reason for appeal has been clearly checked on the
form in the area provided and that the form does not indicate the need for any additional
explanation. In addition, he does not concede that there exists a subject matter jurisdictional
defect as the period of the appeal would apply only to the permit as issued in February 2012.
Atty. Chase was not aware of the publication of the Notice of Issuance as submitted by Atty.
Heller. Nevertheless, he finds the argument that the publication of the notice provided
adequate notice flawed since the February 2012 permit had already expired under the terms of
the Regulations. Furthermore, he finds that what Atty. Heller claims to be an indication of
renewal to be questionable as there is nothing on the document indicating that the permit has
been renewed. And, because he was not previously aware of this document’s existence, Atty.
Chase requested clarification. As discussion regarding the document ensued, Chairman
MacNeil questioned whom to go to regarding the validity of the renewal. Atty. Chase
provided some guidance noting that, in the Cockerham proceedings, a signed and dated note
was added to the bottom of the original form, below the expiration date, clearly indicating that
Zoning Enforcement Officer renewed the application. Chairman MacNeil noted the location of
the signature and date under the section that reads “Permit Issuance Approval” and would
deduce that the intent of the form/signature is the re-issuance of the permit. Board Member
Adams also added that the required parties have signed off on the form prior to the issuance of
the initial permit and that they are not required to do so for the second and/or renewed permit
and that, should overdue taxes or some other impediment have arisen during the interim, the
Zoning Enforcement Officer would determine the next step. Atty. Carey clarified that, because
the appeal is in reference to Permit 212-006 issued February 2011, this issue may not be
relevant to the case at hand.
Atty. Chase requested the hearing be kept open so that he may submit a certified copy of the
deed should that be an impediment to their finding aggrievement. In an effort to keep the
record clean, it was agreed to keep the hearing open for the submission/receipt of the certified
copy of the Deed. In addition, Atty. Carey will be providing some assistance in the drafting of
the motion. The next ZBA meeting will be held on January 8, 2014, within the required 35-
day timeline for the completion of the hearing.
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Wednesday, December 11, 2013
Chairman MacNeil asked if there was anyone present who would like to speak regarding the
appeal.
Motion made by Board Member MacNeil, seconded by Board Member Freeman, to continue
213-ZBZ-2 until January 8, 2004, 7:00 p.m. Discussion: None. Voice vote, 5-0, all in favor.
Motion carried.
5. Old Business — none.
6. Minutes
a. Acceptance of the minutes from the Regular meeting of June 5, 2013.
Motion made by Board Member MacNeil, seconded by Board Member Freeman. Discussion:
None. Voice vote, 5-0, all in favor. Motion carried.
7. Communications — none.
8. Other Business and Applications to come before the Zoning Board of Appeals:
a. Approval of 2014 Meeting Calendar
Motion made by Board Member MacNeil, seconded by Board Member Adams. Discussion:
None. Voice vote, 5-0, all in favor. Motion carried.
9. Adjournment
Motion made by Board Member Freeman, seconded by Board Member Aquitante, to adjourn the
meeting at 10:02 p.m. Discussion: None. Voice vote, 5-0, all in favor. Meeting adjourned.
Respectfully Submitted by:
Agnes Miyuki, Recording Secretary for the Town of Montville
AN AUDIO RECORD OF THE MEETING IS ON FILE IN THE MONTVILLE TOWN
CLERK’S OFFICE