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Appeal No. 213 ZBA-2
JANUARY 8, 2014
7:00 p.m.
REGULAR MEETING
TOWN OF MONTVILLE
ZONING BOARD OF APPEALS
Montville Town Hall
310 Norwich-New London Turnpike
Uncasville, CT 06382
PRESENT:
Zoning Board of Appeals
John MacNeil, Chairperson
Douglas Adams, Regular Member
Joe Aquitante, III, Regular Member
Ellen Lakowsky, Regular Member
Carl Freeman, Seated Alternate Member
Attorney Michael Carey, Suisman-Shapiro, representing the Town of Montville
Attorney Jon Chase, representing Paul E. Chase
Attorney Harry Heller, representing Green Falls Associates, LLC
Thomas Sanders, Zoning Enforcement Officer (ZEO), Town of Montville
Agnes Miyuki, Recording Secretary
Paul E. Chase, Appellant
v.
Green Falls Associates LLC
for property located at:
310 Cherry Lane, Oakdale, Montville, CT
(Assessor’s map 53, lot 3)
CERTIFICATION OF RECORD
This is to certify that the foregoing is true and correct transcript from the electronic sound
recording of the Regular Meeting of the Town of Montville Zoning Board of Appeals on
Wednesday, January 8, 2014.
25 July 2014
Date Agnes T. Miyuki
Minutes Clerk
Town of Montville
Chairman MacNeil: I hereby call the Montville Zoning Board of Appeals to 1
order at, uh, 7:03 p.m., uh, January 8th, 2014. Um, 2
could I have a roll call please? 3
Board Member Adams: Alright, Doug Adams. Here. 4
Board Member Adams: Joe Aqu… 5
Board Member Aquitante: Aquitante, here. 6
Board Member Adams: Ellen Lakowsky. 7
Board Member Lakowsky: Here. 8
Board Member Adams: John MacNeil. 9
Chairman MacNeil: Here. 10
Board Member Adams: Alternate Carl Freeman. 11
Board Member Freeman: Here. 12
Board Member Adams: Elmer, okay, Wittkofske. Absent. 13
Board Member Adams: Right. 14
Chairman MacNeil: Um -- 15
Board Member Lakowsky: You’ve been in this Town long enough to pronounce 16
those names. (laughing) 17
Chairman MacNeil: Um, just as a note, um, Carl Freeman will be seated 18
tonight. 19
Board Member Adams: Okay. 20
Chairman MacNeil: Okay, uh, New Business. We have two, um, 21
applications that are going to require us to set a public 22
hearing. The first is, uh, Joseph M. Wypianski, Wyps-, 23
am I saying that right? 24
ZEO Mr. Sanders: Wyspianski. 25
Chairman MacNeil: Wyspianski, um, I’ll yield to you for the pronunciation 26
of the names. A request for a 10 yard, 10’ rear yard 27
setback variance of Section 10-A.6.3 for the 28
construction of a garage addition on the property at 8, 29
894-904 Norwich-New London Turnpike (Route 32), 30
Montville, CT As shown on Assessor’s Map 83, uh, 31
Lots 6-000 and 7-000. Um, I guess we should, uh, set a 32
public hearing on our next, um, meeting date which is 33
when, Tom?…It is February 5th. 34
ZEO Mr. Sanders: Yep. 35
Board Member Adams: For the record, I will not be here. 36
Chairman MacNeil: Okay, for the record Doug won’t be here. 37
ZEO Mr. Sanders: (inaudible) 38
Chairman MacNeil: Um, second, um, New Business is, uh, Joseph M. 39
Wyspianski: An application for An Amendment to a 40
Certificate of Location Approval for a Used Car or 41
Used Car Dealership, Used Car Dealer’s and Repairer’s 42
Facility, rather, to be located on the property at 894 to 43
904 Norwich-New London Turnpike (Route 32), 44
Montville, CT as shown on Assessor, as shown on 45
Assessor’s Map 83, Lots 6-000 and 7-000. Um, also, 46
um, like to m-, uh, s-, uh, make a motion that we 47
schedule that hearing for the February 5th. Um, I don’t 48
know that anybody agreed, we didn’t actually make a 49
motion for the first one, um, so, uh, let’s go, uh, let’s, 50
let’s finish the (b). All those in favor of setting a public 51
hearing, uh, for February 5th for, um, application, a n-, a 52
new item, uh, item b, of new business, say aye. 53
Board members: Aye. 54
Chairman MacNeil: Opposed? 55
Chairman MacNeil: So moved. Um, secondly, to go back to (a), um, to set 56
that hearing on the same date, uh, February 4th, 2014. 57
All in favor, say aye. 58
Chairman MacNeil: Aye. 59
Chairman MacNeil: Opposed? So moved. 60
Atty. Carey: Mr. Chairman? 61
Chairman MacNeil: Yes? 62
Atty. Carey: (inaudible) 63
Chairman MacNeil: Yes, it was. 64
Unknown Board Member: You said the fourth. 65
Atty. Carey: You said the fourth. 66
Chairman MacNeil: I said fifth, I’m sorry, correction. Just for clarification, 67
they’re both February 5th, 2014. I probably did say the 68
fourth. Um, okay, item 4, Public Hearings, um, Paul E. 69
Chase 213-ZBA-2. An application for an appeal of the 70
decision of the ZEO of the issuance of a Zoning Permit 71
to Green Falls Associates, LLC, for a three-bedroom 72
home on property located at 310 Cherry Lane, Oakdale, 73
Montville, CT. As shown on Assessor’s Map 53, Lot 3. 74
This is a continuation of our last, um, hearing. We left 75
it open, um, so the applicant could, um, uh, submit a 76
drawing, um, and also anybody else could continue to 77
submit information. Do we have, um, anything other 78
than just let the, can the, at this point, just let the 79
applicant to continue his presentation and/or submit any 80
information that he might have. At this time, I’d like to 81
ask the applicant’s representative to come up and, uh, 82
lay it on us. 83
Atty. Chase: Okay, thank you Mr. Chairman, uh, Good Evening, uh, 84
Commission, uh, members. Jon Chase representing 85
Paul E. Chase, the appellant. Um, as, uh, as I recall, uh, 86
although the, uh, hearing was going to be continued 87
initially for a, for a simple housekeeping matter, there 88
was an indication for willingness to keep it open for 89
responses, I suppose, uh, to issues that have been 90
raised, uh, the admonition was that I please not cover 91
ground that’s been covered before and I’ll endeavor to, 92
uh, -- 93
Chairman MacNeil: Please. 94
Atty. Chase: I’ll endeavor to do that. Um, and on that, uh, simple 95
matter of housekeeping, uh, that I’d, uh, initially 96
inquired about, uh, holding the hearing open for -- 97
Chairman MacNeil: I think one of them started out as a map and a certified 98
copy of something. 99
Atty. Chase: Well, it, uh, a, a, a certified copy of a Deed -- 100
Chairman MacNeil: Yeah, okay. 101
Atty. Chase: -- rather than a plain copy. 102
Chairman McNeil: Alright. 103
Atty. Chase: -- and so I’m simply going to submit that certified, uh, 104
copy, uh, to the record. It’s, uh, uh, and, and ask that it 105
simply be substituted for the non-certified, uh, copy 106
that’s already been (inaudible). 107
Secondly and, uh, and in an attempt to address, uh, 108
several birds with one stone, uh, so to speak, uh, in 109
order to provide a bit of, uh, structure, I’m going to, uh, 110
go down the list of issues that were raised by Attorney 111
Heller and attempt to respond to them, uh, and cover as 112
much ground as I can, uh, in, in so doing. The, I think, 113
most significant issue raised by Attorney Heller was the 114
contention, uh, that this appeal is fatally flawed, those 115
are his, uh, words for reason of lack of subject matter 116
jurisdiction, uh, on, on, for, for the reason or on the, uh, 117
um, uh, on the grounds that there was “no reason stated 118
in the appeal” and I, uh, countered that, at the time, by, 119
uh, stating that, uh, the, uh, uh, the form, uh, uh, used 120
by the, uh, Commission, used by, uh, Mr. Sanders’ 121
office was, uh, was plainly filled out indicating the 122
reason for, uh, the appeal was that there was an error in 123
an order requirement or decision made by the Zoning 124
Enforcement Officer and that was specifically identified 125
to be the issuance of, of a particular , uh, p ermit. Um, 126
and I think that that covers that ground. However, um, 127
because I suppose a belt and suspenders approach is 128
sometimes, uh, worthwhile, uh, I have, uh, filed, uh, 129
today, um, an amended appeal in this matter, uh, and I 130
have some copies of it, if you, uh, don’t, uh, already, 131
that I’ll just, you know -- 132
Chairman MacNeil: No. 133
Atty. Chase: -- distribute those. I won’t mark it as an exhibit 134
because it’s been filed (inaudible) -- 135
Chairman MacNeil: Okay. 136
Atty. Chase: I did provide a copy, I faxed with Harry Heller’s office, 137
uh, this afternoon, uh, of this, uh, document and, uh, it 138
does, uh, you’ll, you’ll see that the amendments are in 139
red ink, which makes it easy to -- 140
Chairman MacNeil: We have copies so, they’re black. 141
Atty. Carey: (inaudible) 142
Atty. Chase: Oh, I, I’m sorry. 143
Atty. Carey: (inaudible) 144
Atty. Chase: Okay, I, I apologize. But, I’ll, uh -- 145
Atty. Carey: Well, we’ll keep that here (inaudible). 146
Atty. Chase: Fine, and I’ll, I’ll just indicate what the amendments 147
are, uh -- 148
Board Member Adams: Great. 149
Atty. Chase: The, uh, word ‘amended’ appears at the top, uh, now, 150
unlike, uh, at the time of the application, there is an 151
identifying number for the, uh, for this appeal, that’s 152
been added. And, uh, under the area checked 153
concerning the error, uh, the alleged error in the, uh, in 154
an order, requirement, or decision made by the Zoning 155
Enforcement Officer, I’ve added, “in that the ZEO has 156
acted in excess of legal authority in one or more ways 157
including issuance and alleged renewal of permit.” I’ve 158
added in the next section, uh, uh, that, uh, the decision 159
being appealed is as stated and also, the alleged renewal 160
of the permit. The same has been added to the next 161
section. And at the bottom, uh, there’s a date indicating 162
the date of amendment, a signature of the, uh, appellant, 163
and, of course, uh, this has been received by Mr. 164
Sanders today. Now, to the extent that there might be a 165
concern that this is an unusual practice. I want to point 166
out and make very clearly, uh, that the, uh, decisional 167
law that I have been able to find indicates that this is a 168
practice that’s been followed by this Commission in the 169
past. In the, uh, in the Vitale decision, uh, Vitale vs. 170
Zoning Board of Appeals back in 2004, Judge Purtill 171
wrote a decision. And, while the facts of that particular 172
matter are not really of, uh, of, of consequence here 173
tonight, uh, in that decision, uh, there is, uh, 174
considerable discussion, several paragraphs, uh, uh, 175
concerning the submission of an amended appeal, uh, 176
and, uh, this, uh, was, uh, certainly not contested, 177
challenged, refused, refuted, uh, from the record as it 178
appears in Judge Purtill’s decision and I, uh, simply 179
want to point out that, uh, that this is not an indication 180
of the custom or practice of some other Zoning Board 181
of Appeals, but the Montville Zoning Board of Appeals. 182
And that’s, uh, by the way, uh, Mr. Carey, uh, that is , 183
uh, Vitale, trustee vs. Zoning Board of Appeals, 2004 184
Connecticut Superior Lexus 148. 185
Chairman MacNeil: Will you provide a copy of that for the record? 186
Atty. Chase: Yes, yes, I, I did, um, uh provide one to, uh -- 187
Chairman MacNeil: Okay, thank you. 188
Atty. Chase: Uh, uh, well, actually, uh, I did not. I will, uh, provide 189
a copy of that for the record. 190
Chairman MacNeil: Thank you. 191
Atty. Chase: And as well, though, uh, I know that, uh, had, uh, I 192
would’ve, um, sure have been corrected had there been 193
a, uh, a, a, uh, a misstatement on my part or some kind 194
of transmission error, I will submit also for the record, 195
a, uh, a copy of my fax transmission to Attorney 196
Heller’s office indicating he had received this.… 197
Moving along and this was the issue raised by Attorney 198
Heller that particularly concerned me because, uh, I 199
thought, at first, that I had first done something, uh, 200
something wrong, uh, and, uh, I had to take a, a further 201
look and, uh, and, and parse through, uh, precisely what 202
was being, uh, raised, uh, and that was that this appeal 203
is also flawed, uh, or, uh, or invalid, uh, as the case may 204
be, and that no notice was provided to the property 205
owner of the public hearing. Now, it is true that very 206
early on as soon as this appeal was filed, a number of 207
months ago now, that notice was provided by certified 208
mail to the property owner, um, uh, Green Falls 209
Associates at several addresses of record for that LLC 210
and a copy of, uh, of, of that notice and the certified 211
mailings and so forth is part of the record. Um, 212
however, it’s true that, uh, that notice, uh, was notice of 213
the appeal and the allegation was that under, uh, 214
Section 8-7, I believe it is, of the, uh, of the, uh, 215
Connecticut General Statutes, that the affected property 216
owner, that any affected property owner is entitled, 217
specifically, to notice of a public hearing, uh, being 218
held. And, uh, again, my concern that I had done 219
something wrong here, um, reading the Statute 220
carefully and the decisions that address it, indicates that 221
it is, statutorily, the responsibility of the Zoning Board 222
of Appeals, uh, or, uh, of the Zoning Board of Appeals 223
in this case or, or any Commission, uh, uh, as the case 224
may be, to provide notice to an affected property 225
owner. Now, usually we don’t have any difficulty in 226
that situation because the applicant say before for a 227
variance if, you will, is the property owner or the agent 228
of the property owner and you’re, uh, the, the 229
Commission, uh, uh, has delegated authority or 230
delegated responsibility to provide notice to people 231
such as abutting or adjacent property owners to the 232
person filing the application of the appeal, which was, 233
of course, done here. Um, that delegation had not taken 234
place with respect to any other affected property owner 235
and it remains, therefore, under the Statute, the Board’s 236
responsibility to do so. And, uh, I, I know -- 237
Chairman MacNeil: So, we did something wrong? 238
Atty. Chase: Well, I’m not, -- 239
Chairman MacNeil: I’m sorry. 240
Atty. Chase: I’m not so sure -- 241
Chairman MacNeil: Go ahead. 242
Atty. Chase: I’m not so sure because if you, if you look in, uh, uh, 243
(inaudible) borrow for a moment and return to the 244
microphone with…a page from Mr. Sanders’ file, 245
which is to say, the public file of, uh, from Mr. 246
Sanders’ office, uh, concerning this matter. And, uh, 247
sure, uh, sure enough, there was a conversation, uh, by 248
the Commission staff with Attorney Carey, uh, 249
questioning the procedure here, uh, the Commission 250
staff was concerned about providing notice to the 251
affected property owner. The Commission staff, uh, 252
Judy La Rose had, uh, had, uh, inquired as to whether 253
this should be, uh, to the, uh, uh, property owner’s 254
attorney, uh, who, of course, had no formal way of 255
knowing who that might be at the time, uh, and, 256
Attorney Carey, uh, correctly, I believe, uh, instructed, 257
um, Judy La Rose to prepare a letter to the property 258
owner informing the property owner of the public 259
hearing so you certainly received correct instruction. 260
Um, and, uh, whether there was a, uh, shortfall on the 261
part of the staff, uh, I, I, I don’t know. Uh, before I 262
continue, I’m just going to ask that this, uh, uh, 263
correspondence between, uh, Judy La Rose and, uh, and 264
Mr. Carey, uh, be marked as an exhibit as well although 265
the only copy is the one from the ZEO’s file. 266
(inaudible) 267
Chairman MacNeil: Yeah, somehow we’ll have to get a copy and put the 268
original back in. 269
Atty. Chase: So, first of all, it’s not a short fall or shortcoming on my 270
part. It doesn’t seem to be a shortcoming on Attorney 271
Carey’s part because he gave adequate instruction. The 272
saving grace here, however, uh, is this. Um, the, there, 273
there have been decisions, uh, starting, uh, with sort of 274
the, uh, the seminal case on this subject. This is the, uh, 275
uh, I’ll see if I can pronounce this right, the Bencivenga 276
decision, uh, out of the Appellate Court in, uh, in 1984, 277
uh, that addressed that, uh, precise statutory issue. The 278
ZBA had not provided notice to an affected property 279
owner. The property owner, therefore, didn’t show up 280
for the hearing and claimed, uh, that under the statute, 281
the process was, uh, was, was void and, uh, the, uh, the 282
Appellate Court, uh, ruled, uh, accordingly. Uh, 283
however, um, this is, um, uh, brought further forward, 284
uh, again, uh, within, uh, our own, uh, context, um, uh, 285
the, uh, uh, uh, Kobyluck decision, one of many in this 286
Town, but Daniel Kobyluck vs. Town of Montville 287
wasn’t a decision affecting this, uh, Board, apparently, 288
concerning, uh, or, yes, it was, uh, concerning, uh, lack 289
of such notice and, uh, again, uh, following failure of 290
the ZBA, no offense to any of you because I don’t think 291
any of you were here at the time, it was back in 2000. 292
Um, following the failure of the Montville ZBA to 293
provide notice of the public hearing, again, the property 294
owner didn’t appear. That was that. Process void. Uh, 295
decision, uh, reversed. Um, the, uh, uh, the, the, the 296
difference here, uh, of course, uh, is, uh, set forth in a 297
further decision, uh, just as an example, this kind of 298
thing has come up in other contexts as well. This is 299
Smith vs., uh, Zoning Board of Appeals of the City of 300
Ansonia. It’s a Superior Court decision, uh, 1990 301
Connecticut Superior Lexus, uh, 599. Of course, I’ll 302
submit copies of these decisions, uh, for the record and 303
for Attorney Carey’s reference. That was the opposite 304
situation and is the situation we have here. The 305
affected property owner showed up. The affected 306
property owner’s agent, uh, here showed up for the 307
public hearing and his attorney showed up and, quite 308
candidly, uh, um, perhaps they should have sh-, should 309
have stayed home for the benefit of their argument, but 310
they are here. The Courts had explained that by 311
showing up, despite lack of requisite notice, an 312
argument based on, uh, the failure to provide that notice 313
is waived. And so, I think that this will (forced) all that 314
decision the, or that, uh, circumstance. The three 315
decisions I just mentioned, I have copies of, uh, here 316
and, um, uh, I’ve provided little orange tabs they, you 317
know, they’re just helpful, uh, finding aids. But I’ll 318
submit these. 319
Chairman MacNeil: Thank you. 320
Atty. Chase: The next matter’s the most interesting, I think. We 321
spent, uh, a lot of time last time over the issue of what 322
the word ‘or’ means in the context of a regulation 323
where there is no clear indication of the intent of the 324
legislative body that that word ‘or’ should mean 325
anything other than ‘or’ or, more specifically, not mean 326
‘and/or’, uh, ‘and’ slash, uh, slash ‘or’ and, so, we went 327
through the minutes, uh, and the transcript of the 328
proceedings of the Planning and Zoning Commission, 329
uh, almost a couple years back now when they made a 330
change to the regulation that’s at issue here. And, uh, I, 331
I, I think it’s going to be very difficult to include, um, 332
uh, that there, uh, is not indication of intent on behalf of 333
those drafters or those, uh, uh, uh, legislatu-, 334
legislatures, if you will, to, uh, to clearly indicate to the 335
standard required by the Supreme Court, to clearly 336
indicate an intent that ‘or’ should mean anything other 337
than its, what did we say, disjunctive conjunctive 338
context or sense. But Attorney Heller raised an 339
interesting point. He says, you know, in a nutshell, I 340
think his point was that, uh, that the members of the 341
Planning and Zoning Commission a couple of years ago 342
were simply intending to do in this zone, the WRP160 343
zone what their predecessors had done, had enacted 344
many, many years before in most of the other Districts 345
in the Town and that, therefore, the intention of those 346
original drafters was what was simply being carried 347
forward, uh, to, uh, this particular zone, uh, here and, 348
uh, and now. So, what I did, it took a little bit of effort, 349
uh, uh, but I, uh, have obtained copies and, for the 350
record, there is a certified copy, of all the meetings of 351
the Montville Planning and Zoning Commission from 352
meeting number one in 1969 all the way up through, uh, 353
meeting number 18 in, uh, in 19-, October, or rather, 354
September, I believe, of, uh, 1970 when the 355
Commission actually voted to enact the Zoning 356
Regulations. And, I, I have specifically included, uh, 357
pages, or the minutes, rather, of every meeting during 358
that period even though, in some cases, there was no 359
mention of the work on the proposed Zoning 360
Regulations, but just to show that I’m being inclusive, 361
uh, here. And, very briefly, the, uh, Commission 362
proposed regulations, uh, they eventually, uh, set the 363
date for a public hearing upon those regulations and, 364
then, subsequently they enacted those regulations. 365
Now, I’m going to submit these, uh, documents, uh, uh, 366
sort of together, um, and, uh, rather than proceeding in 367
an unclear way, I’ll point out that what I’m going to 368
show you, also, is a copy of the cover page of the 369
regulations that were being proposed by the Planning 370
and Zoning Commission in 1970 and the version, at that 371
time, of the regulation here in question, which was, uh, 372
known as 5.21 at that time, uh. There is also, again, the 373
cover sheet of the Montville Zoning Regulations 374
indicating effective date October 14th, 1970, 12:00 375
noon, in other words, after the enactment had taken 376
place they’re not longer proposed regulations, these are 377
the regulations and the page in question, you’ll see, is 378
unchanged. What really took some hunting, again, I’ll 379
submit all this as a package to you. What took some 380
real hunting was to find the minutes of that public 381
hearing which was held in September of 1970. And, 382
it’s about 80 pages long, I’m not going to read through 383
all these, but I would encourage you to, uh, because you 384
will find that you will search these public hearing 385
minutes in vain for anything but vague reference by a 386
couple of members of the public regarding protection 387
for small lots or non-conforming lots and an indication 388
by the Commission that, yes, we’re doing that, which 389
is, in fact, specifically what this regulation says that it 390
does. This regulation doesn’t say you can do anything 391
you want on a small lot. I contend it says that if you 392
meet certain requirements or other requirements you 393
can do something, um, but you will see no indication in 394
these minutes of any specific reference to, what about 395
lots that have, uh, not only, uh, narrow frontage, but 396
also, uh, narrow depth or, or, uh, or, uh, as the case may 397
be, uh, uh, to -- 398
Chairman MacNeil: insufficient area. 399
Atty. Chase: That’s right, that’s right, insufficient, uh, area. And, 400
again, to, uh, to, to drive the point home, um, after this 401
public hearing was held, in other words, the, the 402
proposed regulations were submitted to the public at a 403
public hearing. It was held, in fact, here at Uncasville 404
School, uh, on, again, September 16, 1970 and, after 405
listening to what the public had to say and, matter of 406
fact, uh, the commission went through the solemn step 407
of, uh, indicating that it had taken the due consideration 408
the comments for the public hearing, taken into due 409
consideration the concerns of the public and so forth, 410
they turned around and voted to approve what had been 411
the proposed regulations. In other words, after listening 412
to the public, after listening to many, many comments, 413
including a few comments with vague concern about 414
small lots, the Commission didn’t do anything other 415
than enact the very language that had been proposed 416
and is in question here tonight based on, uh, the, uh, 417
the, what, what the Supreme Court says is the proper 418
way of interpreting that, uh, the placement of that word 419
‘or’ and the meaning of it. So, uh, what I’d like to give 420
to you and I’ll, uh, like I said, I’ll do this kind of at 421
once, I’m going to give a copy for the record, uh, a 422
certified copy of the meeting minutes, there’s a certified 423
copy of the, uh, of the, uh, uh, public, um, hearing, a 424
transcript, and then copies, as well, of that page of the 425
regulations both before and after. 426
Chairman MacNeil: Thank you. 427
Atty. Chase: I told you I wasn’t going to read through them, -- 428
Chairman MacNeil: Okay. 429
Atty. Chase: They are voluminous.…I have some, uh,-- 430
Chairman MacNeil: There’s one short of these, Jon. 431
Atty. Chase: Oh, oh, sure. 432
Chairman MacNeil: The biggest one. 433
Atty. Chase: I think I have one extra. 434
Chairman MacNeil: Perfect. 435
Atty. Chase: Terrific. Now, I, uh, actually have…a couple of extras 436
of these materials and, uh, I know in the past, Attorney 437
Heller has clearly indicated that he has all this stuff at 438
the office back when his uncle was the Town Attorney, 439
but just so that we’re not relying on memory, I’m going 440
to provide a copy of this, uh, here, as well.… 441
Now, as to the publication of notice that Attorney 442
Heller raised. I, uh, don’t know if it was apparent, but 443
this, uh, this certainly took me by surprise the last time. 444
It certainly wasn’t something that I had, uh, counted on 445
and so I did a little, uh, research and I would, uh, -- 446
Chairman MacNeil: I think you said something like if you’d have known 447
about it, we could have saved everybody a lot of time. 448
I’m not sure what you meant by that. 449
Atty. Chase: Well, if, in fact, the publication of notice, uh, had been 450
done in accordance to the Statute and, therefore, would 451
have limited the appeal period to 30 days from 452
publication, rather than 30 days from notice by the 453
appellant, in this case, that there was something going 454
on out on that property then, then the circumstances, I 455
think would have been different. There, there, there are 456
two reasons, though, that I don’t believe that’s the case. 457
First of all, uh, that, as I read the Statutes, and, in 458
particular, the manner in which they were amended, uh, 459
to, uh, include the provisions mentioned by Attorney 460
Heller last time, uh, I would, uh, argue that the, uh, uh, 461
manner of provision of notice in the newspaper. You 462
have a copy of something that was published in The 463
Day or The Montville Times or something like that, uh, 464
that, while partially compliant with the Statute, is not 465
fully compliant, uh, based on the record. Um, Section 466
8-7 of the General Statues was amended back in 2003. 467
This was under Public Act 03-144, um, and this, 468
specifically, followed a well-known case called the 469
Monroe Decision, um, uh, regarding, uh, the sort of 470
appeals taken from actual notice of activities on a 471
property as opposed to notice provided by a newspaper 472
publication which is, whi-, whi-, which is not required 473
and still not required to be done in the case of a zoning 474
permit, unlike a subdivision approval or something like 475
that. However, um, in the wake of the, uh, Monroe 476
Decision, uh, the, uh, legislature got busy and amended 477
the Statutes and made some changes and they, they 478
changed, uh, the legislature changed section, amended 479
Section 8-7 to provide, uh, that in the case of an appeal 480
from the decision, um, of the Zoning Enforcement 481
Officer that the appeal period, uh, and this, this is the 482
actual language that was added, uh, at that time. “Such 483
appeal period shall commence for an aggrieved person 484
at the earliest of the following: Number One, upon 485
receipt of the order requirement or decision for which 486
su-, from which such person may appeal.” Well, we 487
don’t have that here. The appellant, here, can get a 488
copy of the order or decision. “Number Two, upon the 489
publication of notice,” uh, in a, in a, in a, I’m sorry, 490
“upon the publication of notice in accordance with sub-491
section (f) of Section 8-3 as amended by this act.” Or, 492
“number three, upon actual or constructive notice of 493
such order requirement or decision.” Now, I had 494
contended, uh, and still contend, uh, that this appeal 495
was brought based on prong three, within thirty days of 496
notice in the form of the appellant, Paul Chase, seeing a 497
hole being dug in the ground and concluding that this 498
was probably consistent with the issuance of a zoning 499
permit. Back in the Cockerham case a few years ago, 500
Judge Purtill explained that the digging of a hole in the 501
ground is consistent with the issuance of a no-, of a 502
zoning permit and that a reasonable person should 503
know that that’s probably what, you know, happened 504
or, at least, be on notice that there was reason to 505
inquire, um, as opposed to something like just cutting 506
down some trees or putting up a for sale sign or 507
something like that. But, Attorney Heller draws our 508
attention to prong two, a, a timely appeal being at an 509
earlier time. In other words, the earliest, uh, in the 510
statutory language, uh, uh, under prong two, upon the 511
publication of a notice in accordance with sub-section 512
(f) of Section 8-3. Well, you have to read that together, 513
therefore, with sub-section f of Section 8-3, which was 514
also amended at that time and, uh, what sub-section (f) 515
had previously said was that, uh, you know, this, this, 516
this mainly applies or is in the context of Building 517
Permits or Certificates of Occupancies so don’t be 518
confused with what the legislatures are saying that, in 519
the same manner, as the process used for appealing the 520
issuance of a building permit. So 8-, uh, 3(f) used to 521
say that “no Building Permit or Certificate of 522
Occupancy shall be issued for a building, use, or 523
structure subject to the Zoning Regulations of a 524
municipality without certification, in writing, by the 525
official charged with the enforcement of such 526
regulations that such building, use, or structure is in 527
conformity with the regulations or is a valid use under 528
such regulations.” In other words, uh, you need a, to 529
issue a building permit, you need a certification from 530
the, the Zoning Enforcement Officer. Uh, and, uh, so, 531
this, this is the, this is the provision that was amended 532
of 8-3, uh, and this is the manner in which, therefore, 533
under 8-7 such notice by publication can validly arise 534
and have valid effect, I would argue. The amended 535
language says, “such official shall inform the applicant 536
or any certification that such applicant may provide 537
notice of such certification either by, one, publication in 538
a newspaper having substantial circulation in such 539
municipality or, two, any other method provided by 540
local ordinance” and then the changes go on to state 541
what that notice shall contain. Now, I don’t think that 542
there’s any real question, uh, that the contents of the 543
notice provided by Attorney Heller, uh, to you last time 544
comply with, uh, the contents requirements of, uh, 8-545
3(f), so I’m not going to spend any time on that. And, I 546
don’t think, either, that, uh, that there’s, uh, any 547
question that it was done in accordance with any other 548
method provided for by local ordinance because I don’t 549
think we have one in Montville. I’ve looked and I can’t 550
find one. So, what we’re getting down to, uh, in that 551
amended language providing for the manner of service 552
that 8-7 says has to be followed. Again, and to, and to, 553
when we take out everything else that, you know, is not 554
at stake here, “such official shall inform the applicant 555
for any such certification that such applicant may 556
provide notice of such certification by publication in a 557
newspaper having a substantial circulation in such 558
municipality.” Well, the legislature, obviously, took 559
pains to include that language. The legislature didn’t 560
say, conspicuously, did not say that the applicant may 561
publish notice. It says that the official, in this case it 562
would be the Zoning Enforcement Officer, shall inform 563
the applicant for any such certification that they may 564
provide notice of the decision by publishing it. And, I 565
think, we have to account for the fact that the 566
legislature including that language included it for a 567
reason. Uh, while I can’t point to a decision -- 568
Chairman MacNeil: Is the word ‘or’ in there? 569
Atty. Chase: (laughing) it is… 570
Chairman MacNeil: Just checking, just checking… 571
Atty. Chase: It is, it is not a relevant part, -- 572
Chairman MacNeil: Just… 573
Atty. Chase: Um, uh, but, uh, uh, but, in any event, um, my guess 574
would be, would be that the legislature intended to 575
provide a sort of a gate-keeping requirement, in other 576
words, to prevent people from just going around 577
publishing notice claiming that something had been 578
done to ensure that the Zoning Enforcement Officer 579
was aware of this and that there was a, a, a, you know, 580
the use of the language, the, the, the mandatory word, 581
‘shall’, “shall inform the applicant”. Naturally, the 582
ZEO would, would probably keep a record of that, you 583
know, in writing, that “I’ve, I’ve done this, I’ve taken 584
this step, and here is what you must do.” I mean, I 585
would presume compliance with this Statute would, uh, 586
would best be in the best form of a letter, “Dear 587
Applicant who I just issued a permit to, here is what I 588
give you authority to do under this Statute.” And 589
there’s been, certainly, no evidence, uh, and, and 590
certainly no contemporaneous written evidence 591
indicating that Mr. Sanders, uh, provided, uh, that, uh, 592
authority, gave that permission. In other words, uh, uh, 593
authorized, uh, the, the applicant to publish that notice, 594
whereby he would’ve had the opportunity to 595
presumable review it first, make sure it was correct. 596
Uh, you could imagine the consequences if people were 597
to take advantage of this kind of publication, and, uh, 598
and I will tell you that I, uh, I’ve searched carefully 599
and, uh, have, uh, not found, um, uh, any, uh, decisional 600
law that provides a contrary interpretation, uh, to that 601
language as I have set it forth. In other words, there’s 602
been no court that said, uh, uh, you know, I’m wrong 603
on that. It simply hasn’t come up. And so, you’ve got 604
to examine the context, I think, of that, uh, language, 605
what it says and what’s meant by “such official shall 606
inform” and the fact that we have no evidence that was 607
done here. 608
The second reason, which is a I think briefer, uh, 609
explanation of why the publication, um, issue or not is, 610
is kind of a moot point here, uh, takes us back to the 611
filing of that amendment, the, uh, amended appeal now, 612
specifically, is meant to address the issuance of a permit 613
by, uh, Mr. Sanders which, I don’t think anybody, 614
anybody disagrees that Mr. Sanders issued, uh, that 615
permit on the date he did, on, on 2/6/12. I’ve got copies 616
of that and so on. The, um, uh, the issue, of course, that 617
came up, for the first time, certainly, to my knowledge, 618
for the first time to the knowledge of the appellant, Paul 619
Chase, was this issue of renewal. And, it came up in an 620
unusual way last time, I think, because, if you’ll 621
remember, it was brought up to the Commission’s 622
attention that, among Mr. Sanders’ materials, some 623
things stapled together, was a form that, I’m going to 624
hold it up so you can see it, it looks like this. It says on 625
top of it “Town of Montville Building Department 626
Construction Permit Approval, Applicant is responsible 627
for obtaining all of the required approvals. No permit 628
will be issued until all of the required signatures are 629
obtained” and there’s sort of a checklist where, it seems 630
quite apparent to me, and, I think, we pointed out last 631
time, that this is a checklist, in my experience at any 632
rate, intended to be filled, intended by the Building 633
Department, who ultimately issues the Building Permit, 634
uh, to be used, uh, to uh, um, uh, ensure that all of the 635
required approvals were in place, be it a zoning, uh, 636
approval, be it any approval from the Fire Marshal, 637
maybe in the case of a commercial building, Health 638
Department, uh, uh, you know, Police Department, 639
WPCA, of course -- 640
Chairman MacNeil: Jon, I could tell you that that’s exactly what that form is 641
used for. It’s a checklist before a building permit is 642
issued to make sure all the prerequisites that are 643
checked are met. 644
Atty. Chase: I agree, I agree. 645
Chairman MacNeil: That’s what that form is normally used for. 646
Atty. Chase: I agree and, uh, well, I agree that that’s -- 647
Chairman MacNeil: And it may have been used for this. I’m just saying 648
that’s what the form is normally is -- 649
Atty. Chase: So, what I did is I, you know, went in and, uh, you 650
know, confirmed that, of course, myself with the, with, 651
with, with the building inspector who was kind enough 652
to provide a certified copy of a document from his files, 653
which is the same thing, -- 654
Chairman MacNeil: But, completed? 655
Atty. Chase: -- but completed, um, in other words, indicating that 656
that’s what it is, a checklist.…But, the argument was 657
that the uncompleted version and, I should say that it 658
makes (inaudible) sense that Mr. Sanders, and, 659
presumably, the applicant went to him first to get this 660
checklist signed off. Mr. Sanders as, makes plenty of 661
sense, made a copy of what he signed and stuffed it in 662
his file here. (inaudible) Obviously, it then went on to 663
the other departments that were necessary and out at 664
that location, you won’t have to go to the WPCA or 665
probably the State DOT, but the applicable, uh, boxes 666
were addressed and, uh, and signed off to the 667
satisfaction of the, uh, of the Building Inspector, one 668
presumes, because he had, then, issued a Building 669
Permit. Um, so the last time around and, this is what 670
kind of took me by surprise, because the, the 671
incomplete version, the initial signature by Mr. Sanders 672
was being held out to be a permit renewal. If you look 673
at the language although it’s, you know, it’s not very 674
expansive, we can, we can see that Mr. Sanders, 675
apparently, signed this on January 10, 2013, that’s the 676
date that appears next to his signature. And, underneath 677
it, he wrote permit number 212-006 2/6/12, which was 678
the date of the issuance of the permit. Now, we talked 679
last time about how the regulations expressly state that 680
all permits shall expire after a year if the work hasn’t 681
been done thereunder and it was quite clear, based on 682
the evidence before you last time in the form of an 683
affidavit and some other materials that, clearly, the 684
work hadn’t been completed under this permit within 685
one year. I don’t think that can be contested. As a 686
matter of fact, there weren’t even any trees cut down on 687
the property, uh, but, s-, so on, on 1/10/13 there can be 688
no question that the permit was, shall we say, 689
presumptively valid, it was not withstanding the issues 690
that I’ve raised concerning the, uh, the legal error 691
committed by Mr. Sanders that, that, that, on it’s face, 692
the permit was -- 693
Chairman MacNeil: -- still valid. 694
Atty. Chase: -- still valid on, on 1/10/13 when this was evidently 695
signed off, taken down to the, uh, Building Department, 696
well, actually a little bit later because, uh, the Health 697
Department signature is not until 2/6/13, so, apparently 698
the Building Permit wasn’t issued, uh, even right away, 699
um. The thing is this, um,…I took pains to make sure 700
there was nothing new in Mr. Sanders’ file beyond this, 701
in other words, no, no new permit out there or anything 702
like that that would take us by surprise tonight. I will 703
say that he was, Mr. Sanders was kind enough to mail 704
me, uh, recently, I guess, what could be called the one 705
new thing on this, uh, subject, um, it’s a letter to me, 706
it’s probably in the file, but I’ll put a copy in just to 707
make sure, and you can, you can have copies, also, just 708
to follow along. It’s just a letter to me, uh, uh, and it, 709
uh, it references, um, uh, “enclosed is a copy of the 710
receipt for renewal for Zoning Permit 212-006” and 711
there’s a check for ten bucks for Green Falls 712
Associates, the check’s dated 12/16/13 and then there’s 713
a receipt issued by Mr. Sanders that, uh, that says on it, 714
um, uh, “renewal”. And, uh, now, uh, there’s a, there’s 715
a memo on it, on the check, the check dated 12/16/13, it 716
says “renewal from 2/6/13 to 4/6/4 (sic)” which, I 717
thought, was kind of, kind of interesting.…So, what we 718
have is no contention. I took pains to check the file and 719
talked with Mr. Sanders, there’s no question that 720
anything further has been issued that, uh, that this, this 721
signature on the incompleted checklist form is still 722
being contended to be the renewal and that, um, there 723
was ultimately, or was in connection with that a check 724
for a sort of retrospective renewal, I guess, uh, ten 725
months, uh, starting ten months ago was, uh, was, uh, 726
provided, uh, and accepted. Now, here’s where it’s 727
kind of interesting. First of all, and as a preliminary, I 728
want to point out that the, uh, the Town, uh, of 729
Montville, or, particularly, the Planning Department 730
actually, actually publishes a schedule of fees for all of 731
the things that you have to pay for, be it a, you know, a 732
special permit or a zone change application and, uh, 733
here, a, uh, zoning permit and, uh, you’ll certainly see, 734
um, that there is no provision here for renewal and I’ll 735
get back to that point.…In other words, you pay your 736
ten bucks for a zoning permit or, or nothing else. A 737
permit for ten bucks is a permit for, for ten bucks. And, 738
we see here the manner in which it was recorded, uh, be 739
done. Well, as I alluded to last time, we’ve sort of been 740
here before. Some of us and I have been here before on 741
this issue of what constitutes a building permit, or, I’m 742
sorry, a zoning permit renewal even at the face of the 743
express language of the Montville Zoning Regulations 744
that says a permit expires, if everything’s not completed 745
in a year and makes no provision for renewal and, even 746
though, now as we see the fee schedule makes no 747
provision for renewal or anything like that. Well, it’s 748
back to the decision in the Charles Cockerham appeal 749
back in 2009 where this same sort of thing came up 750
except, the same, but different, because there, a man 751
was building a house. In fact, it was largely completed 752
while this process was going on and, standing here, I 753
noticed that the permit had, on its face, expired the 754
night before and Mr. Sanders, on that night, as I recall, 755
stated, “well, come on down to the office the next day 756
and I’ll renew that for you.” And, in fairness, that was 757
a situation where the work had been substantially 758
completed. The house was almost finished within that 759
year of the issuance of the permit and that, and you can, 760
you can even argue that it would’ve been completed if 761
it hadn’t been, perhaps, slowed down to whatever 762
extent by the appeal process. Here, we have something 763
different. No construction until that one-year period 764
had expired. In the Cockerham decision, Judge Purtill 765
said, as follows, he says as follows “at the hearing on 766
May 4th, 2005, it was noted that the permit had expired. 767
The next day, the defendant, Mr. Bialowans, appeared 768
at the ZEO’s office and the permit was renewed by a 769
notation on the original permit indicating renewal and 770
the payment of the required fees.” Later on, Judge 771
Purtill goes further and, provided some legal analysis, 772
he says, “the testimony of the ZEO was that the renewal 773
of the defendant Bialowans’ permit was not unusual 774
and it was the normal practice of the office to renew 775
permits in the same manner.” In other words, the 776
manner indicated earlier by Judge Purtill to actually 777
renew the permit. Here’s the permit. Here is the 778
renewal. It says on it ‘renewal’ and so on. Again, 779
conspicuously, this practice, again, which I don’t think 780
the regulations support, but Judge Purtill says or, at 781
least, accepted that it was the custom and practice of 782
Mr. Sanders to do something called a renewal and to do 783
it in this manner, uh, is not what we have here. So, I 784
know I offered this last time around and, um, Mr. 785
MacNeil, you were reluctant to take a copy of this 786
decision, uh, into evidence indicating that, uh, you 787
know, that, uh, the Board has all this paperwork in its 788
office and so on. I think you have to take a look at it, 789
uh, and that’s why I’m going to ask again to provide a 790
copy of -- 791
Chairman MacNeil: Feel free. 792
Atty. Chase: Thank you.…I’ve also given you (inaudible) for the 793
record, a copy of what Judge Purtill said was a renewal 794
based on the testimony of Mr. Sanders of what a 795
renewal is. 796
Chairman MacNeil: Jon, do you have one more of the, uh, one more of the, 797
uh, decisions? We’re missing one. Thank you. 798
Atty. Chase: And, I think that Judge Purtill was very careful as he 799
usually is to, uh, to be clear as to what the record 800
indicated, the testimony of Mr. Sanders was, as I’ve, 801
I’m paraphrasing, of course, Mr. Sanders says, 802
this is what we do, this is what constitutes a renewal in 803
Montville. And, again, I submit, that this is not what 804
we have here. Um, lastly on this point, I gave you copy 805
of the Town of Montville, uh, Planning Department fee 806
schedule and I pointed it out that there’s nothing about 807
renewing a permit. It’s either a permit or it’s not a 808
permit, but beyond that chart or table, there’s some 809
definition sections and, um, definition section, well, it’s 810
the third one on the second, third one and it appears on 811
the second page, uh, 2114-5, regarding retainment of 812
fees. And, um, it, uh, states very clearly that fees shall 813
be paid at the time of the application submission. It 814
goes on to say that failure to comply with the sub-815
section shall be grounds for denial of any application or 816
revocation of any permit previously issued. So, I, I 817
don’t know how we can construe the effort to, and 818
conspicuously, write on the check to say that here’s a 819
retroactive payment, ten months late for a permit after 820
its expired and to construe that to comply with the 821
Board’s, because it’s part of the Zoning Regulations 822
own, own rules, regarding the payment of those, uh, of 823
those fees and the consequences of failure to pay those 824
fees when they’re due. Or, rather, when an application 825
is filed. 826
I have, uh, I have one last thing I, uh, do genuinely, uh, 827
think and, um, that is this. It’s all very interesting, uh, 828
what the Planning and Zoning Commission said back in 829
1970 and I did find it very interesting, the folks who 830
have lived in the Town for a long time may have some 831
real interest in seeing who some of the players were and 832
some familiar names and whatnot, um, and, and, 833
certainly, it’s relevant to the points that have been 834
raised here, uh, as are the issues of what constitutes a 835
permit and the issue of, uh, what the various statutes 836
require. But I don’t want to lose sight of the ultimate 837
concern here, uh, which, admittedly, this, uh, uh, 838
Commission has very little, uh, jurisdiction over or 839
grounds to address, but we’re talking here about a, a 840
pre-existing non-conforming lot of, I think, what .11 841
acre or something like that in the four-acre water 842
resource protection zone. It sits right on the edge. In 843
fact, it’s separated by, about, an intervening strip of 844
someone else’s land about, maybe, 20 feet wide, 845
separated by that distance from the city of Norwich 846
Stonybrook Reservoir property. Uh, the whole purpose 847
in enacting that zone was, of course, to protect the 848
water resource, the aquifer, and, while there had been 849
some limited development in the neighborhood before 850
the, uh, uh, water resource protection zone was enacted, 851
it was, in fact, some distance from the property in 852
question and that’s really the ultimate concern here, 853
was the, uh, was the protection of the aquifer or, or, or 854
water resource, uh, a lot of that, I think, I don’t mean to, 855
uh, to, uh, uh, uh, to, uh, to, uh, uh, ramble a bit, but I 856
will say that the applicant’s property, the appellant’s 857
property, Paul Chase’s property is, uh, located adjacent 858
to the reservoir property, it’s his long term aim to 859
preserve that property, perhaps, one day it will wind up 860
as part of that watershed property. It contains water 861
resources itself, there’s a former pond. The Town of 862
Montville, as we know, is a growing community and 863
we’ll need to look to, for water, additional water 864
resources in the future as it is now, as you know, we 865
purchase some from Norwich, purchase some from 866
Groton and so the protection of that area is, uh, is 867
sincere and heartfelt and is actually what drives us here 868
tonight. Now again, Mr. Carey will probably tell you, 869
at this point, that that’s a very nice story, Mr. Chase, 870
but this is the Zoning Board of Appeals, we don’t have 871
jurisdiction over such things and it’s a shame, uh, or 872
would be a shame because there is some useful 873
evidence, I think, that’s already, uh, in the file. I see 874
that the concerned, other adjacent property owner Mrs. 875
Butler, uh, had written and she had asked that you take 876
into consideration an opinion which she went to the 877
trouble of obtaining seven years ago when this property 878
was last before you from, um, uh, her engineer who 879
addressed some issues concerning what was proposed 880
at that time. Now, at the time a variance was before 881
you, but it was essentially the same development 882
proposed now it we’ve just changed or purportedly 883
changed the, uh, the setback, uh, lines. It’s basically 884
the same, uh, development and the, um, the engineer 885
raised some, uh, I thought, interesting and relevant 886
points that should be considered, unfortunately, on the 887
face of them, you really couldn’t do much to take them, 888
uh, into consideration even though Mrs. Butler has 889
specifically asked that you, uh, you do so. So, um, I 890
want to, at least, allow that opportunity to occur, uh, in 891
other words, allow this Commission an opportunity to 892
take into consideration the recommendations and 893
concerns that were raised by DiCesare and Bentley 894
back in, well, 2007, I think it was, concerning -- 895
Chairman MacNeil: Is that, but, isn’t that, um, reliving the past, we’re here 896
to see, we’re, we’re here to find out what the word ‘or’ 897
means – 898
Atty. Chase: Well, I – 899
Chairman MacNeil: -- and so now, we’re going to go back and talk about 900
site conditions that may affect the reason that you 901
brought this, or your dad brought this forward. -- 902
Atty. Chase: Uh, what I, what I, what I will do is this, in answer to 903
that question. What I have here is a, uh, is, is a Verified 904
Intervention Pleading under Section 22A19 of the 905
General Statutes that, uh, i-, that provides a limited 906
jurisdiction for this Commission over environmental 907
matters that, uh, that come within its purview on the 908
basis of. uh, a matter like this. And ask that, uh, this is 909
a, an intervention pleading that’s, uh, that’s signed by 910
Mrs., uh, Joanne Chase, who is here tonight, um, and, 911
uh, it sets forth in the manner, uh, required of such 912
statutory, uh, pleadings, uh, the, uh, concerns that are, 913
uh, being raised in connection with the environment. 914
You have evidence in your file that gets precisely to, 915
um, uh, the, uh, the issues raised in this pleading, uh, 916
and, though, that opinion was written several years ago, 917
and some things may have changed, I would, uh, uh, 918
suggest to you that the science has not changed, the 919
scientific recommendations have not changed and the 920
advice of DiCe-, DiCesare and Bentley that certain 921
things be looked into and adequately addressed before 922
any development, uh, is permitted on that property -- 923
Chairman MacNeil: Now, I think I’ll have to ask our counsel if we can 924
actually take that in. 925
Atty. Chase: Well -- 926
Chairman MacNeil: I’m not an attorney, Jon, I don’t know. 927
Atty. Chase: Well, what I’m going to do is submit it and he can tell 928
you (inaudible) if he lets me -- 929
Chairman MacNeil: Yeah, I, I, I’m just, if it’s relevant, or -- 930
Atty. Chase: Sure, well, here, uh, then, what I’ll do, then, is this, I’m 931
just going to hand it to (inaudible) -- 932
Chairman MacNeil: Okay. And, if he -- 933
Atty. Chase: -- (inaudible) copies (inaudible)-- 934
Chairman MacNeil: Okay. 935
Atty. Chase: -- in some respect, it’s typical (inaudible) -- 936
Chairman MacNeil: Okay. 937
Atty. Chase: -- just hand that to Mr. Carey and, uh, I know that he’ll 938
advise you -- 939
Chairman MacNeil: Thank you. 940
Atty. Chase: Sure. And, as I said there was some relevant evidence 941
in the record, I think, that pertains to that that I hope 942
you can (inaudible). 943
Chairman MacNeil: Okay. 944
Atty. Carey: Mr. Chase, I just want to say that, by putting this in the 945
record, this amended appeal, um, it doesn’t necessarily 946
mean that the Board has jurisdiction (inaudible) the 947
record and I’ll advise them. 948
Atty. Chase: I know you will, I know you will, Mike, but please, 949
please understand, and I wanted to, uh, and this is a 950
good point to make clear for the record. In preparing to 951
come here tonight, I took into consideration things, 952
things that were raised last time mainly the points 953
raised by Attorney Heller, of course, as we’ve seen 954
point by point. I also took carefully into consideration 955
the question that I directed, in, in, in all honesty, to Mr. 956
Carey last time in respect to the purported renewed 957
permit. I said, “Mr. Carey, is this going to be 958
considered a valid renewal or not?” I used words to 959
that effect. And, if you recall, with all due respect to 960
Mr. Carey, he would, will not answer my question, he 961
stated, and I recall this specifically, that he didn’t feel 962
that it’s his place to give me legal advise. So, based on 963
your own attorney, I really don’t know if what is being 964
purported to be a renewed permit is, in fact, considered 965
by this Board or accepted by this Board as such, so 966
what am I supposed to do? I either have to raise the 967
point or, now, or raise it later at some point in the 968
future, uh -- 969
Chairman MacNeil: I think it’s fair to raise it and I also think it’s fair to 970
give, just like you had an opportunity last month to 971
review and bring something forward, he’s presented 972
something and he can review it and, then, comment 973
after the fact. 974
Atty. Chase: Absolutely, I certainly wouldn’t suggest that you would 975
make a deci-, or could make a decision, you know, 976
tonight on this. I mean, Mr. Carey has some homework 977
to do and I gave you some interesting reading materials 978
and, and so forth. Uh, that’s really all that I have. I, I 979
thank you for your consideration. E-, E-, Except that if 980
there’s anything that Attorney Heller says that I feel I 981
need to address, I’d just like a few minutes to do it. 982
Chairman MacNeil: Thank you. 983
Atty. Chase: Your welcome, thank you. 984
Chairman MacNeil: Do you need a few minu-, do you need, do you need a 985
break? 986
Atty. Carey: Yes. 987
Chairman MacNeil: Oh, um, let’s take a five-minute break. 988
Chairman MacNeil: Okay, we’re back, um, okay, is there anyone who wants 989
to, uh, actually, I guess we can hear from, uh, the, uh -- 990
Atty. Carey: Mr. Chairman? 991
Chairman MacNeil: Hold on one second. 992
Atty. Carey: Just before Mr. Heller begins, I want to expand on that 993
comment I made about the amended application and the 994
22A19 application (inaudible). I said, jurisdiction, I 995
mean that that we are not (inaudible) or for any reason, 996
jurisdictional or other reasons. I just want to make that 997
clear. 998
Chairman MacNeil: Okay, thank you. 999
Atty. Heller: Good evening Mr. Chairman, members of the Board. 1000
My name is Harry Heller, I’m an attorney with an 1001
office at 736 Route 32 in Uncasville and I’m 1002
representing the property owner and the respondent in 1003
this matter, Green Falls Associates, LLC. Um, I’m 1004
going to make my presentation this evening, sort of, in 1005
reverse order, um, in, and in doing so, the first thing I 1006
want to address is the use of the word ‘or’ and the 1007
derivations of Sections 4.13.5 and 4.13.6 of the current 1008
Zoning Regulations which provide relief, um, in a 1009
number of respects from the bulk requirements of the 1010
regulations for non-conforming lots. And the first thing 1011
I’m going to do is introduce into the record my sworn 1012
affidavit and attached to it are copies of Section 5.21 of 1013
the Zoning Regulations that were adopted in October of 1014
1970, um, that, I believe, Attorney Chase also 1015
incorporated into the record. And, attached to that 1016
affidavit are Exhibits A, which is the draft of the regul-, 1017
the Zoning Ordinance that went to the final public 1018
hearing and, I think, as I’ve indicated previously, uh, 1019
the September 16, 1970 public hearing was the sixth 1020
public hearing held on the adoption of Zoning 1021
Regulations in the Town of Montville, uh, because 1022
zoning had been defeated at the prior five referendums 1023
and the Section 5.21 that was incorporated into the final 1024
draft that went to public hearing, uh, represented a 1025
culmination of comments, uh, elicited at prior public 1026
hearings and prior defeats of the draft ordinance, uh, 1027
and was refined to address those concerns. Now, if you 1028
look at Exhibit A and Exhibit B. Exhibit A is what 1029
went to public hearing. Exhibit B is what was 1030
ultimately adopted. Um, they are the same, but not 1031
identical. If you look at the last sentence of the first 1032
paragraph, uh, after Section 3.12, there was a correction 1033
of the word ‘of’, uh, to properly incorporate the word 1034
‘or’ so that small lots either had to conform with the 1035
bulk requirements in Section 3.12, which was a table of 1036
bulk regulations that was incorporated into the Zoning 1037
Ordinance from 1970 to 1990, uh, and then the 1038
comprehensive revision of the regulations in 1990 was 1039
replaced by individual sections for each zone in Town, 1040
which incorporated both the use and the bulk 1041
regulations. One thing that is important to note in the 1042
title to Section 5.21 is that it’s entitled “Small Lots for 1043
Single Family Detached Residences”. This regulation 1044
was in effect from 1970 to 1990. In 1990, the Planning 1045
and Zoning Commission comprehensively revised its 1046
Regulations and the provisions that were a separate 1047
section, in Section 5.21 because this was such an 1048
important issue to the townspeople in the public 1049
hearings leading up to the ultimate adoption of Zoning 1050
Regulations were treated as a separate stand-alone 1051
section. In 1990, um, they were appropriately 1052
incorporated into the general non-conforming lot, non-1053
conforming use, and non-conforming structures 1054
sections of the regulations, um, in Section 4.13.5 and 1055
4.13.6. But, the language which is the substantive 1056
discussion of this proceeding, um, which has a total 1057
area or lot frontage, the word ‘or’, less than the 1058
minimum required has not changed from the date when 1059
zoning was first considered in Town. That language 1060
has stayed the same. So, in the case that was cited by 1061
Attorney Chase, um, the Angell case and a second 1062
Connecticut Supreme Court case, which is the 1063
D’Occhio vs. Connecticut Real Estate Commission 189 1064
Connecticut 162, pages 169 to 170, the Supreme Court 1065
said, Section 20-324G, which dealt with the power of 1066
the Real Estate Commission to intervene in 1067
proceedings, say, against a builder or developer where a 1068
claim was being made under the guarantee fund. The 1069
Commission seizes on the phrase ‘intervene in or 1070
defend’ contained in sub-section A of Section 20-324E 1071
as affording it a choice of intervening independently or 1072
on behalf of the agent. The disjunctive ‘or’ can be 1073
construed as ‘and’ where such construction clearly 1074
appears to have been the legislative intent. So, in 1075
dealing with the substantive issue here, what we have to 1076
do is look at and see if we can determine the legislative 1077
intent of the Planning and Zoning Commission which is 1078
expressed both in its deliberations and in comments 1079
made during the public hearing as well as how that 1080
language has been implemented consistently over a 1081
period, now, of 44 years. And, if you look at the 1082
minutes of the September 16, 1970 public hearing that 1083
was submitted into the record this evening by Attorney 1084
Chase, I’m going to call your attention to two 1085
provisions. On page 51, the Commission, which was 1086
holding the public hearing, was addressed by a Mr. 1087
Solmo (sp?) he stated, “everybody has been talking 1088
about the big property owners. I am one of the guys 1089
that’s got a little tiny lot, a little 50 foot frontage, and I 1090
am worried. Am I going to have trouble building on 1091
this lot a few years from now? This lot was bought to 1092
build on and if I am going to afford, if I am going to 1093
suffer because I purchased the lot and I can’t afford to 1094
build on it now, I think this is just taking my land away 1095
and throwing it away.” Response from the Chairman, 1096
“On page 52, I think you will find the answer.” Now, if 1097
you go back to the affidavit that I submitted, the Exhibit 1098
A attached to it is page 52 of the ordinance which was 1099
before the public hearing that evening so the Chairman 1100
was, specifically, referring to the provision concerning 1101
Section 5.21 for small lots for single family residences. 1102
In Mr. Solmo’s case, not only a tiny lot, but a lot with 1103
50 feet frontage, which was less than anything required 1104
in the Zoning Ordinance as it was proposed in the 1105
public hearing. Mr. Solmo continues, “I read this then 1106
it is hazy in other aspects.” The Chairman, “well, you 1107
know, it is not the easiest language, certainly. We have 1108
considered this for the existing small lot.” In other 1109
words, Mr. Solmo again, “we will be able to give them 1110
a new way when they are talking about making this 1111
acreage smaller instead of…” oh, I’m sorry, I’m going 1112
on now to page 64. Another question raised to the 1113
Commission by a Ms. Nance (sp?). “Diane Nance, 1114
Lakeview, Salem. I own property in Montville, now, in 1115
the 120 area and it is less than three acres of land. 1116
What I want to know is, is the Deed that I now have 1117
good for building a home or is it not after this goes 1118
through?” The Chairman, “here is the specific instance 1119
of a specific question we have to go into. There are 1120
provisions in here for that. Where was that? Page 52? 1121
5.21 on page 52, small lots for single-family detached 1122
residences. There are provisions in the regulations for 1123
the protections of just such an instance.” Ms. Nance, 1124
“yes, but there are places in this book that contradicts 1125
this. If a foundation isn’t already down, is that 1126
measurement on that Deed still good?” The Chairman, 1127
“no, that doesn’t apply to this. This is something 1128
different. Where a lot exists in a certain condition and 1129
it is a lot and the owner does not own contiguous 1130
property, then it can be covered. However, as I say, we 1131
cannot go into specific instances without knowing the 1132
whole story.” So, I would submit to the Board that the 1133
dialogue in the public hearing record specifically 1134
indicates that the Planning and Zoning Commission 1135
was contemplating the very type of lot that we’re 1136
talking about this evening when it enacted Section 5.21 1137
as a portion of the Zoning Ordinance in 1970 and that 1138
the very title of the provision that it adopted 1139
contemplated that this would be protection and grant 1140
relief for small, non-conforming lots and, as Mr. 1141
Solmo’s query indicated, a lot with 50 feet of frontage, 1142
which was substantially less than anything required in 1143
any residential zoning district in the Town. But, in 1144
interpreting that language, we next have to look at how 1145
that has been implemented and interpreted over the 1146
course of time that we have had zoning in the Town. 1147
The next document I’m going to enter into the record 1148
are zoning permits which had been issued by the 1149
Zoning Enforcement Officers of the Town of Montville 1150
that deal with these types of lots and I have 1151
incorporated a summary page which delineates the 1152
name of the applicant, the address, the assessor’s map 1153
and lot, the zoning district in which the property is 1154
located, the amount of lot frontage and the amount of 1155
lot area and the relief which was obtained either under 1156
Section 5.21, prior to 1990, or Section 4.13.5 and 4.13.6 1157
after 1990 and what I think is important to note here is 1158
that if you look at who issued these zoning permits, 1159
you’ll notice that they were issued by four separate 1160
Zoning Enforcement Officers. Uh, with respect to the 1161
Natick property by Michael Murphy, with respect to the 1162
Pike property by Johanna Kosberg (sp?), with respect to 1163
the Johnson property by Colleen Bezanson, and with 1164
respect to the other listed properties by Thomas 1165
Sanders. With respect to the Hanson property, I call 1166
your attention to notes which were found in that Zoning 1167
Permit file specifically making reference to the fact that 1168
it will meet the setbacks under Section 4.13. So, it is 1169
our contention on the substantive issue that, very 1170
clearly, the legislative intent of the Planning and 1171
Zoning Commission in adopting zoning in 1970 was to 1172
provide a universal protection for lots which did not 1173
meet the bulk requirements in the regulations, whether 1174
that be minimum lot area or minimum lot frontage or 1175
both and in instances where the size of the lot was so 1176
small that it could not comply with the side-yard 1177
setback requirements because of its narrowness to also 1178
grant relief in accordance with the table for the side-1179
yard setback requirements otherwise required in the 1180
bulk table. 1181
The next issue I’d like to address is the issue of the 1182
renewal of the zoning permit. Montville’s regulation 1183
was specifically considered by Judge Purtill in the 1184
Cockerham decision of September 30, 2009. And that 1185
was a renewal, which had occurred after the expiration 1186
of the zoning permit, as Attorney Chase indicated on 1187
the record this evening. This is what Judge Purtill said, 1188
“Section 4.2 of the Zoning Regulations provides that no 1189
building shall be erected without a zoning permit. The 1190
issue of zoning permits is treated under the regulations 1191
as a ministerial matter and the Zoning Enforcement 1192
Officer is authorized by Section 4.2.2 to issue such 1193
permits provided the requirements of the regulations are 1194
met and the required fees are paid.” This procedure 1195
was followed when the permit was issued on April 14, 1196
2004. At the time of renewal, nothing had changed. In 1197
this instance, the permit was issued, based upon a plan 1198
submitted to the Zoning Enforcement Officer, and, at 1199
the time or renewal, nothing had changed. The Zoning 1200
Regulations were the same, the house, which the 1201
property owner proposed to construct in accordance 1202
with that permit, was identical to that for which the 1203
original permit had been issued. The court goes on to 1204
say, “it would have been illogical and served no 1205
purpose to have required Bialowans to submit a new 1206
application identical to the existing application. 1207
Although the regulations do not specifically mention 1208
renewals, the ZEO had the authority under Section 1209
4.2.2 to take the action which he did.”…I’m going to 1210
also introduce into the record, notices, um, that I 1211
obtained from various files in the Zoning office and 1212
they’re almost identical and span a period of…a 1213
number of years, anyway. Systematically providing 1214
notice of an expiration of a zoning permit and the fact 1215
that a renewal can be made at the Planning and Zoning 1216
office. So, again, you have a course of conduct over a 1217
number of years by both Mr. Sanders and prior Zoning 1218
Enforcement Officers customarily renewing zoning 1219
permits and, in effect, validating the testimony of Mr. 1220
Sanders before this Board in the Cockerham decision, 1221
testimony which was relied upon by Judge Purtill in 1222
finding in Cockerham that the function of issuance of 1223
the renewal was a ministerial duty of the Zoning 1224
Enforcement Officer, um, and was valid 1225
notwithstanding the fact that there’s no express 1226
language in Section 4.5 of the Montville Zoning 1227
Ordinance authorizing renewals. And, I would submit 1228
that the fact that in Cockerham, work had been 1229
commenced on the property and in this instance work 1230
has not been commenced is immaterial to the legal 1231
principal which was enunciated by Judge Purtill in his 1232
decision. The critical factor is not whether work has 1233
been commenced or has not been commenced, but 1234
whether or not the proposal for which the original 1235
permit had been issued and the regulations under which 1236
the original permit had been issued had changed. 1237
This evening, you received an amended appeal in this 1238
matter. It is our position that if the original appeal was 1239
jurisdictionally deficient in that it did not comply with 1240
the requirements of Section 8-7 by stating the grounds 1241
for appeal, then this Board had no subject matter 1242
jurisdiction over this appeal of an issue and that cannot 1243
be corrected by an amendment to the appeal at this 1244
stage. The Vitale decision is different in that it does not 1245
go to the subject matter jurisdiction of this Board to 1246
entertain the appeal. It is our position that you have no 1247
subject matter jurisdiction to entertain the appeal due to 1248
the fact that the appeal was not taken within the 30-day 1249
period after the publication of notice occurred in The 1250
Montville Times. Now, Attorney Chase argues that the 1251
notice was insufficient because he alleges that Mr. 1252
Sanders did not notify the applicant that he had the right 1253
to publish. It, it’s an argument that’s also almost not 1254
worthy of a response, but because I suspect that we’re 1255
going to be facing an appeal in this, I need to respond 1256
for the record. Typically, people who apply for zoning 1257
permits are laypersons. They’re not familiar with the 1258
law. They are not knowledgeable in the procedural 1259
requirements, um, to protect their rights. The statute 1260
places the obligation on the property owner or the, the 1261
applicant for the zoning permit to publish notice of the 1262
issuance of the zoning permit in order to cut off appeal 1263
rights. Whether or not Mr. Sanders notified the 1264
applicant is not germane to this proceeding. What is 1265
germane is that the property owner published notice in 1266
the newspaper and Connecticut case law makes a 1267
distinction between what’s called constructive notice, 1268
notice that’s published in the newspaper, and actual 1269
notice, um, which is the knowledge that someone has of 1270
a proceeding or receiving an actual letter or notice 1271
informing someone of the proceeding. In constructive 1272
notice, the publication for the whole world to see, is the 1273
act that confers subject matter jurisdiction in land use 1274
permitting proceedings. In this case, the act of 1275
publication that complies with the Statute, in the 1276
substantive information that it provides to the whole 1277
world, is the act which cuts off the appeal rights. So, 1278
after that thirty-day period passed, there was no right of 1279
appeal, this Board does not have subject matter 1280
jurisdiction to entertain the appeal, and the renewal of 1281
the permit, issued by Mr. Sanders, did not alter any 1282
substantive rights. The permit issued and the permit 1283
renewed were under the same exact regulations and 1284
authorized the same exact activity. The renewal of that 1285
permit does not revive the procedural right of appeal 1286
where notice was given and no appeal was taken. By 1287
way of corollary, I call the Board’s attention to the 1288
procedural path that you follow when you have 1289
continued public hearings. The law requires you to 1290
publish notice twice in a newspaper of a public hearing 1291
being conducted before this Board in order to provide 1292
the whole world with notice of the location of the 1293
property, which is the subject of the application, and the 1294
subject matter of the application that you will be 1295
considering. If that public hearing is not concluded on 1296
the night of the hearing, you do not publish, again, 1297
notice of subsequent or continued hearings on the 1298
application because the published notice of the public 1299
hearing of an issue gives notice to the whole world of 1300
that proceeding and it is the obligation of the public, 1301
then, to take such action as they deem necessary to 1302
protect their substantive rights. 1303
Now, getting back to the amendment which was filed in 1304
the Zoning office today. I have two issues for the 1305
Board to consider. We still claim that the notice is 1306
deficient because it doesn’t state the grounds of the 1307
appeal. The grounds of the appeal in this case are that 1308
the Appellant, to your Board, claims that Mr. Sanders 1309
violated Section 4.13.6 in granting a zoning permit for a 1310
property which has both non-conforming lot area and 1311
non-conforming lot frontage. That was not stated in the 1312
original appeal to this Board. It was not stated in the 1313
amended appeal. The reason why the statute requires 1314
an Appellant to state grounds for the appeal is that so 1315
people can intelligently respond. You, as a Board, can 1316
intelligently prepare for the evidence that’s going to be 1317
presented at the hearing and people who may be 1318
affected by the appeal, in this case, the property owner, 1319
Green Falls Associates, can come to the hearing 1320
prepared to substantively address that which is being 1321
alleged as a deficiency in the action of the Zoning 1322
Enforcement Officer. Claiming that he had no 1323
authority to issue the zoning permit without specifying 1324
the grounds upon which that allegation is made, does 1325
not satisfy the requirements of Section 8-7 of the 1326
General Statues and is, therefore, fatally defective. 1327
Another thing I want to point out is, at the last public 1328
hearing in December, there was evidence entered into 1329
the record, uh, of the transcript of the hearing on the 1330
change in Section 4.13.6 of the Regulations that 1331
occurred in 2011. I want to be very clear that it is our 1332
position that what occurred there is not germane 1333
whatsoever to the substantive issue that’s been raised in 1334
this proceeding because the operative language, the use 1335
of the word ‘or’ didn’t change in the 2011 amendment. 1336
So, again, you have to go back and, one, look at what 1337
the intent of the Planning and Zoning Commission was 1338
in 1970 when they adopted Section 5.21 and how that 1339
interpretation has been uniformly applied by four 1340
different Zoning Enforcement Officers in the Town of 1341
Montville over a period of 40 years, um, without any 1342
complaint by the Planning and Zoning Commission 1343
which enacted it in its legislative capacity. 1344
The final issue that we need to address is that there was 1345
a 22A19 petition that was submitted into the record this 1346
evening. Um, a 22A19 petition authorizes any person 1347
who, in a verified petition, alleges that there is activity 1348
which is reasonably likely to unreasonably pollute or 1349
destroy the natural resources of the State of Connecticut 1350
has standing to appear before your Board to allege 1351
those environmental degradations which are claimed. 1352
And you, as a Board, have to consider those that are 1353
within the subject matter jurisdiction of your Board. 1354
You’re not the Environmental Protection Agency, you 1355
only have the right to consider what is within your 1356
jurisdiction. What I do not know, without looking at 1357
the exact language of the Statute, which I don’t have 1358
with me this evening, but Attorney Carey, as your 1359
representative, can advise you on, um, is whether or not 1360
a 22A19 petition applies in this proceeding because this 1361
is not a permitting proceeding. This is an appeal of a 1362
decision of the Zoning Enforcement Officer and I raise 1363
that as an issue that we’re not conceding that there is a 1364
right to file an intervention petition in an appeal of a 1365
decision of the Zoning Enforcement Officer and I’m not 1366
alleging there’s not. I, I simply do not know at this 1367
point, but you have a representative who can advise 1368
you, um, on that issue. There is case law, uh, appellate 1369
level case law in the State of Connecticut, the 1370
Riverbend decision and, I believe, it’s the Evans 1371
decision that indicate that in the event that your Board, 1372
in considering a 22A19 intervention petition, makes a 1373
determination that the activity which is being proposed 1374
is not reasonably likely to unreasonably pollute, impair, 1375
or destroy the natural resources of the State of 1376
Connecticut that you do not have to make a finding, 1377
that there are not feasible and prudent alternatives. So, 1378
in the event that Attorney Carey, on your behalf, 1379
determines that there is authority to file an intervention 1380
petition in this proceeding, then, in addition to the other 1381
findings that you’re required to make on the appeal, you 1382
will be required to make a determination as to whether 1383
or not the activity for which the zoning permit was 1384
issued is reasonably likely to have a deleterious impact 1385
on the environment. In considering that, what you are 1386
dealing with here is a small validly existing non-1387
conforming lot near the end of Cherry Lane. Not 1388
abutting, but in very close proximity are in excess of 1389
100 acres of land that is owned by the City of Norwich, 1390
Department of Public Utilities as part of their 1391
Stonybrook Watershed and Reservoir. That land will 1392
not be developed. The property that surrounds the 1393
Green Falls Property on three sides is an approximately 1394
70-acre tract of land. That parcel, by regulation, will 1395
have to be developed at a density of one dwelling unit 1396
per 160,000 square feet so in considering environmental 1397
degradation that may result from the construction of 1398
this one singular house what you need to consider is 1399
what the overall impact of that will be on the 1400
environment in light of the total context of the area 1401
where the lot is situated and the density at which 1402
development can occur in that area as the result of the 1403
ownership of large acreage by Norwich Public Utilities 1404
and the fact that the whole area is zoned in the WRP160 1405
resources district. We submit to you that, one, the 1406
construction of a dwelling house on this lot is required 1407
to comply with the Connecticut Public Health Code. 1408
Number two,…this may take a minute… 1409
Chairman MacNeil: Do you want us to take a few minutes, or… 1410
Atty. Heller: No, no, it won’t, it won’t take that long. I would like to 1411
submit into the record, a letter from Ian Kohl, who is a 1412
registered soil scientist, wetlands scientist, addressed to 1413
Peter Gardner of Dieter and Gardner, dated August 31, 1414
2007. “At your request I have examined the above 1415
referenced property for the presence of inland wetlands 1416
and watercourses in accordance with the regulations of 1417
the Town of Montville, Connecticut and the State of 1418
Connecticut Inland Wetlands Watercourses Act 1419
Connecticut General Statues 22A36 through 45. After 1420
investigating the soil conditions on the subject property 1421
it was clearly evident that there are not inland wetlands 1422
or watercourses on the property or within 75 feet 1423
thereof. I have reviewed the subject site plans titled 1424
‘Plans Showing Proposed House, Well, Drive and 1425
Sewage Disposal System on Property of Arthur W.D. 1426
Gazelle’,” which is this property, “dated January 2007 1427
prepared by Dieter and Gardner and believe that the 1428
existing field conditions shown are accurately 1429
represented. In addition, it is my professional opinion 1430
that the proposed activities associated with the subject 1431
site development will not negatively alter or diminish 1432
any offsite wetlands or watercourses.” Now, the 1433
testimony in this proceeding this evening was concern 1434
for the protection of the aquifer and the water resources. 1435
At this time, I would like to call, uh, Peter Gardner who 1436
is a member of the applicant Green Falls Associates, 1437
but is also a licensed land surveyor in the State of 1438
Connecticut, um, to discuss the procedures which are 1439
followed with respect to the siting a non-sited (?) septic 1440
system and with respect to the drainage patterns in this 1441
area. 1442
Mr. Peter Gardner: Good evening, uh, Peter Gardner, licensed land 1443
surveyor, uh, Gales Ferry, Connecticut. Uh, we started 1444
working on this property in 2007. One of the first steps 1445
we always do with a property is test holes. Uh, along 1446
with the Uncas Health Department, uh, we excavated 1447
deep test pits on the property and the data that came 1448
from them was, was very good. In fact, the test holes 1449
did not require an engineered septic system. Along 1450
with that, we also looked hard at where this property sat 1451
with relationship to the, uh, reservoir system. We are 1452
not in the watershed for the reservoir, uh, that’s proven 1453
by the topography of the area as well a, just going out 1454
there and looking at things, but, um, we meet health 1455
code, we are not in the watershed and, with regards to 1456
the Uncas Health District, getting a permit there was 1457
pretty easy compared to other stuff so, um, we’ve got a 1458
good site here. Thank you. 1459
Chairman MacNeil: Thank you. 1460
Atty. Heller: And, I believe that we have into the record, but I’d like 1461
to confirm it, the permit to discharge that was issued by 1462
the Uncas Health District… 1463
Chairman MacNeil: Well, I know they signed off on the check sheet that, 1464
that, for the, the, the document that was submitted, um, 1465
earlier was a sign off sheet and Uncas Health District 1466
signed off on that permit, sign off sheet. 1467
Atty. Heller: We don’t have the permit… 1468
Chairman MacNeil: I don’t -- 1469
Board Member Adams: (inaudible) had one, no? 1470
Chairman MacNeil: It was a while ago. We probably, we may have it 1471
here.… 1472
Board Member Freeman: Is this what you’re looking for?… 1473
Chairman MacNeil: No, it would be from the Uncas Health District.… 1474
Board Member Adams: Is that it?… 1475
Chairman MacNeil: No.…I have a copy of, um, I’ve got it. 1476
Unknown Board Member: Here it is. 1477
Chairman MacNeil: Yup.… 1478
Atty. Heller: (inaudible) sign-off sheet, too, also, right? 1479
Chairman MacNeil: Yes. 1480
Atty. Heller: Okay. 1481
Atty. Carey Mr. McNeil, (inaudible)? 1482
Chairman MacNeil: I don’t have any exhibit stickers. But, I mean, these 1483
were given to us. But, I think, do you have that in your 1484
file? 1485
Atty. Carey: She has tonight’s here. 1486
Minutes Clerk Agnes Miyuki: I have tonight’s but I don’t have last (inaudible). 1487
Chairman MacNeil: You don’t have that from last week, or last month?…I 1488
think it actually came from Harry last month…yeah, 1489
that was part of his…he gave it to us last month. 1490
Board Member Freeman: Yeah, I think you gave it to us last meeting, Harry. 1491
Chairman MacNeil: You gave it to us last month, I believe. 1492
Atty. Carey: Does it have a sticker on it? 1493
Chairman MacNeil: Not this one. We all got copies. 1494
ZEO Mr. Sanders: (inaudible) February 23rd. 1495
Chairman MacNeil: Right, that’s attached to this, as well. 1496
Board Member Freeman: We have extra copies if you need it. 1497
Atty. Heller: I don’t think I, I think it was part of -- 1498
Chairman MacNeil: Oh, Tom’s. 1499
Atty. Heller: -- the, the Zoning Enforcement Officers -- 1500
Chairman MacNeil: Yeah, I think he submitted this. You’re right, you’re 1501
right. So, do you have a co-, have one now or not? 1502
Atty. Carey: I don’t need them– 1503
Chairman MacNeil: Okay. 1504
Atty. Carey: I just want to make sure that (inaudible). 1505
Chairman MacNeil: Alright. 1506
Atty. Carey: (inaudible) 1507
Chairman MacNeil: Okay. 1508
Atty. Carey: (inaudible) 1509
Chairman MacNeil: Part of the file, I guess. 1510
Board Member Freeman: This came in with Tom’s…that I took? 1511
Unknown Board Member: Why don’t you give it to -- 1512
Chairman MacNeil: I gave it, they just gave it back to me. 1513
(inaudible conversation) 1514
Chairman MacNeil: There was something that he took out of there, that was 1515
only one copy, that they made an exhibit, that we had to 1516
make another copy, bring it back. 1517
Atty. Heller: We submit to the Board that the evidence indicates that, 1518
one, the development of this site for single-family 1519
residential purposes is in full compliance with the 1520
Connecticut Public Health Code and, two, that there is 1521
no evidence that the construction of one single-family 1522
residence on this lot, taking into consideration the soils 1523
on the lot and the setting of the lot in an area in a 1524
WRP160 zone with adjoining protected land, will not 1525
have any adverse impact on the natural resources of the 1526
State of Connecticut and, therefore, there is evidence in 1527
the record for this Board to make a determination that 1528
the activity authorized by the zoning permit issued by 1529
the Zoning Enforcement Officer is not reasonably likely 1530
to unreasonably pollute, impair, or destroy the natural 1531
resources of the State of Connecticut. Uh, that’s all I 1532
have unless the Board has any questions. 1533
Unknown Board Member: I’m good. 1534
Atty. Heller: Thank you. 1535
Chairman MacNeil: At this time, we’ll let the applicant come up and, 1536
hopefully, very briefly. 1537
Atty. Chase: I, I, I will try to be very, very brief. I, I would like an 1538
opportunity to review an item that’s been placed into 1539
evidence earlier just as has been done (inaudible). 1540
Chairman MacNeil: Would you like, like five minutes? 1541
Atty. Chase: Five minutes will be fine. 1542
Chairman MacNeil: Okay, we’ll take a five-minute break. 1543
Atty. Chase: And hopefully, that will allow us to resolve the issue -- 1544
Chairman MacNeil: Okay. 1545
Atty. Chase: -- about the document that was, uh -- 1546
Chairman MacNeil: Okay. 1547
Atty. Chase: (inaudible) 1548
Atty. MacNeil: All set. Go ahead, Jon. 1549
Atty. Chase: Okay, back on the record, Attorney Jon Chase, uh, I, 1550
uh, just to be perfectly clear, uh, I’m going to be 1551
referring to a couple of items that are, uh, in evidence. 1552
And so, I’m going to, I’m going to be taking those from 1553
Agnes’ pile and returning them when I’m finished 1554
(inaudible) -- 1555
Chairman MacNeil: Okay. 1556
Atty. Chase: In, uh, in, in as brief response as I can, going, uh, point 1557
by point to the, uh, the issues, uh, Attorney Heller 1558
raised. With respect to the, uh, 22A19 intervention 1559
pleading in the environmental iss-, environmental 1560
issues raised, obviously, there’s been some, uh, uh, 1561
deferral by the Board to Attorney Carey and I trust that 1562
that will be, uh, resolved, uh, to, uh, to his, uh, 1563
satisfaction. Uh, however with regard to the, uh, 1564
substantive treatment of that, uh, intervention, uh, 1565
pleading that was, uh, filed, I submit that there is 1566
evidence in the record which indicates the unreasonable 1567
likelihood of harm to the environmental resources of 1568
the State that is not addressed by and not resolved either 1569
by the statements, by Mr. Gardner, in all due respect 1570
tonight, or by things like the fact that a septic tank 1571
permit was issued by the Uncas Health District. So, I 1572
simply ask that if the, uh, uh, Commission or Board, uh, 1573
takes the opportunity to do so, that the relevant 1574
documents are reviewed including that report by, uh, 1575
uh, DiCesare and Bentley Engineers who specifically 1576
urge that, uh, uh, alternatives be taken into 1577
consideration including alternatives such as those that 1578
were proposed in the intervention pleading, itself. Um, 1579
there was jus-, just, to make a correction, um, uh, 1580
Attorney, uh, and this might have been a simple 1581
misstatement on Attorney Heller’s, uh, part, but he, he 1582
talked about the testimony this evening. I presume he 1583
was talking about me concerning, uh, uh, concern for 1584
the wetlands and watercourses and so forth. I want to 1585
make perfectly clear that my statements in that respect 1586
were a statement on behalf of my client indicating his 1587
own, uh, intentions and hopes with respect, uh, to his, 1588
uh, property. They were not my testimony. Um, uh, 1589
conversely, there was Attorney Heller’s testimony in 1590
the form of an affidavit, uh, tonight. Uh, that is 1591
testimony. Under the ordinary rules of, uh, of evidence 1592
and procedure that would apply in a courtroom, uh, I 1593
would, uh, I would probably, at this point, have to ask 1594
for disqualification based on that testimony. We work 1595
on more relaxed basis here, there’s no question about 1596
that, but I want to make clear that, uh, his testimony 1597
was testimony. Mine was, uh, simply a statement of 1598
my client’s, um, position. 1599
There was a comment that the 2011 Planning and 1600
Zoning Commission proceedings that were discussed 1601
last time around that a transcript provided are not 1602
germane whatsoever to the proceedings here tonight. 1603
Well, come on folks, you weren’t born yesterday. Uh, I 1604
think it’s very clear what the relevance of those 2011 1605
proceedings are or were in the context of the appending, 1606
of appending appeal at that time for the Appellate Court 1607
which was ultimately upheld in favor of this Board’s 1608
decision. It was a back door attempt to circumvent the 1609
Appellate Court and to set up the, uh, uh, scenario for 1610
the sort of thing that ultimately brings us here tonight 1611
which was the issuance of a zoning permit. Uh, I, I 1612
think it’s very clear what the history of this, uh, matter 1613
has been and that the documents that were submitted, 1614
including the testimony, uh, I’m sorry, including the, 1615
um, uh, transcript of those 2011 proceedings where 1616
Attorney Heller, himself, stood up and said during a 1617
Planning and Zoning Commission’s, uh, uh, proceeding 1618
to amend its own regulations on its own motion, uh, 1619
when Attorney Heller stood up and said that this is what 1620
we are trying to do here. I, I, I think what happened 1621
here is quite clear. 1622
With respect to the continued contention that this 1623
appeal is fatally deficient for the failure to state grounds 1624
under Section 8-7 of the Zoning Regulations, I 1625
researched this matter. I thought I was pretty thorough, 1626
perhaps Attorney Carey may go further than I was able 1627
to do, but I spent a lot of time on it. And I find the fact 1628
that Attorney Heller conspicuously did not state any 1629
case law in support of his position to be quite telling 1630
because I couldn’t find any. 1631
With regard to the argument that was characterized as 1632
“almost not worthy of a response”, that there had not 1633
been compliance with the 8-3 publication procedure 1634
that 8-7 requires in order to establish that 30-day cut-off 1635
period by publication. Again, there is no case law 1636
addressing that argument to my knowledge, based on 1637
my research and, again, there was none presented. 1638
Now, that’s not to say that there is a decisional law 1639
that’s in some way relevant, that there could be 1640
analogies drawn, uh, but there is no on-point authority 1641
on that, uh, uh, specific, uh, position nor did Attorney 1642
Heller present any, uh, as, uh, as we saw. The 1643
argument was that the renewal or the, uh, I’m sorry, the, 1644
uh, the, uh, uh, the argument that the, that the renewal 1645
of the permit, uh, the purported renewal does not re-1646
establish the procedural right to challenge the original 1647
permit, I think, is simply incorrect on the face of the 1648
example given. The analogy was made that Boards and 1649
Commissions publish notice of public hearings and 1650
then, sometimes, continue those hearings from time to 1651
time and that the public, having been adequately 1652
apprised of the public hearing, uh, therefore has notice 1653
of a continued, uh, public hearing. I just think it’s off 1654
point. Um, the, uh, case law, including some of the 1655
decisions that I have submitted for other reasons 1656
tonight, in some of the cases, discuss this, uh, very 1657
issue, um, concerning, um, uh, notice, uh, of, uh, public 1658
hearings being attributable, once provided, to future 1659
proceedings and, uh, again, I, I just don’t see what it 1660
has to do with the renewal of a, uh, of a zoning permit, 1661
um. Apples and oranges. It’s a tough issue, I realize 1662
that, but the analogy is simply not, uh, correct. 1663
On the issue that there is no subject matter jurisdiction 1664
over this appeal by this Board because no grounds have 1665
been stated. In the application form that is handed out 1666
by your Zoning Enforcement Officer to the layperson 1667
who signed it or to the laypersons like the one who 1668
signed it, I should say. It’s not signed by me. Would, 1669
if correct, create an impossible situation. This may be 1670
relevant to the fact that, once again, despite research on 1671
my part, after Attorney Heller raised this issue last time, 1672
I’m unable to find any case law standing for the 1673
proposition that he states, that because no, uh, specific 1674
grounds are stated on the form. The form is quite 1675
specific. It says that there is an error being challenged 1676
in any order or decision of the Zoning Enforcement 1677
Officer. More to the point, though, and, as illustrated 1678
by my earlier commentary about the waiver of notice 1679
defects, and I realize that Attorney Heller would make 1680
the argument response that subject matter jurisdiction 1681
can’t be waived and I disagree that it’s a subject matter 1682
jurisdictional problem, suffice it to say. He and his 1683
client came here last time. They were able to mount a 1684
very well prepared argument against this appeal. 1685
Furthermore, they listened to my arguments, they came 1686
back here tonight and had some interesting responses. 1687
To argue that they were, that their, that their ability to 1688
do so was diminished in any way, uh, based on the 1689
alleged lack of any further indication of what this 1690
appeal is, other than what was stated in the appeal as, as 1691
now, of course, amended, I, I think is just, I, I think is 1692
just specious. They were, they would have been better 1693
off making that argument if they had stayed at home 1694
and not come here as I stated in respect to the, uh, to the 1695
other notice issue where the courts have specifically 1696
indicated waiver based on presence. 1697
I think if you read the minutes of that 1970 public 1698
hearing, notwithstanding the blas (?) that was placed on 1699
it with it by Attorney Heller. You’ll come to the 1700
conclusion that I did. The same conclusion that I did, 1701
that there was no specific discussion of this subject of 1702
the, of the language of that regulation and, uh, and, uh, 1703
what it was intended to mean, specifically, with regard 1704
to the use of the word, ‘or’. A couple of people 1705
expressed concern at the public hearing about the 1706
impact on small lots and there’s no question that the 1707
regulation here in question is intended to provide some 1708
relief for small pre-existing lots. The question is, 1709
really, where does it end? What about a, what about a 1710
10 x 10 foot pre-existing small lot? 1711
Chairman MacNeil: I always thought that a lot, as long as you could meet 1712
the health requirements, the bulk and the setbacks, as 1713
long, that’s, that was number one. Even if you had a 1714
small pre-existing lot, you couldn’t, you couldn’t 1715
develop that lot, unless you could meet the health 1716
requirements. That’s, that’s, I thought that was sort of a 1717
prerequisite for any, uh, structure or any residence or 1718
dwelling unit to be put on a property. That’s pretty 1719
much, you can’t get your septic or you can’t, there’s no 1720
city sewer, you’re done. 1721
Atty. Chase: Well, I mean, ultimately, uh, you know, uh, you can’t, 1722
uh, you can’t build a house and rely on an outhouse or, 1723
uh, or dragging buckets of water from the brook, uh, uh, 1724
you know100, uh, yards away as you might have done 1725
in the 18th century. That’s, uh, that, that, that’s 1726
certainly true. The existence or not of a septic permit 1727
by the Uncas Health District is not dispositive of 1728
whether your regulation’s been satisfied. The 1729
regulation -- 1730
Chairman MacNeil: But, I’m saying that talks to a concern of, you know, 1731
old, o-, developing a small lot that doesn’t meet the b-, 1732
our bulk requirements, but it’s trying to, the Health 1733
Department has an o-, has a jurisdiction – 1734
Atty. Chase: Okay, – 1735
Chairman MacNeil: -- that says you’ve got to have a well so far away from 1736
your septic system and -- 1737
Atty. Chase: Okay, may-, may-, maybe I see your point, I mean it’s 1738
certainly true that while a pre-existing non-conforming 1739
lot does not need to conform to the area requirements of 1740
the district. I mean, it’s, it is a fact, but it is not a fact 1741
that, uh, can be challenged here that this .11 acre lot 1742
exists in the 160,000 square foot, uh, water resource 1743
protection, uh, zone. That’s the nature of a non-1744
conforming lot. Nevertheless, besides being able to get 1745
a septic permit or, uh, you know, or, or what have you, 1746
the more germane requirement, specifically the 1747
germane requirement here, is that all other area or, 1748
rather, I’m sorry, um, uh, uh, bulk and, uh, and setback 1749
requirements of the zoning regulations apply. That’s 1750
why, for example, when this property was before you 1751
seven years ago, the issue was a requested variance 1752
from the, um, uh, the WRP160 setback requirements, 1753
which apply to this small property. Uh, this Board, uh, 1754
voted not to grant that variance or did not approve those 1755
variances and, as I said, the Appellate Court uphold, 1756
upheld you because, uh, there was demonstrated a, uh, 1757
a, a valid alternative use that met the Zoning 1758
Regulations. And, in fact I would posit that that valid 1759
alternative, uh, use is still available based on, uh, 1760
evidence that’s, uh, been, uh, here, uh, before you. I 1761
would, uh, refer you to the, uh, to the notices from Paul 1762
Chase to Peter Gardner back in September or 1763
thereabouts and the contents and what they say and that 1764
you weigh that against what the Appellate Court stated 1765
regarding available alternative uses, to the extent that 1766
you’re interested in that. I don’t think that it really 1767
resolves the question before you tonight. The question 1768
tonight is, does this lot, this, it is a lot, does it, is it 1769
entitled to the relaxed setback requirements that are set 1770
forth in the regulation in question and here we are, um, 1771
uh, can you, can you satisfy one alternative for the 1772
other? Or can you satisfy both? Or qualify under both 1773
and uh, and, and, and meet the, uh, uh, or meet the 1774
entitlement or be entitled to the provisions of that 1775
section? Again, um, ‘or’ and I don’t want to dwell on 1776
that, but we talked about the case law. I will dwell on it 1777
to this little bit only to say that the Supreme Court with 1778
respect to the interpretation of that sort of language and 1779
the need to determine specific legislative intent has 1780
nothing to do with the practices, customs, past decisions 1781
of the Zoning Enforcement Officer. I think I mentioned 1782
last time to you, Mr. Chairman, that the Zoning 1783
Enforcement Officer might have been wrong in the 1784
past, might have been wrong 50 times in the past. That 1785
doesn’t change the meaning of that regulation in 1786
accordance with the Supreme Court’s directive for 1787
interpretation of disjunctive conjuncti-, conjunctive use 1788
of the word, uh, ‘or’. What is relevant, all that is 1789
relevant, not subsequent interpretations, not the way we 1790
always do things — all that is relevant is what that 1791
regulation means in accordance with the Supreme 1792
Court’s directive. With regard to legislative intent and 1793
the, uh, statement -- 1794
Chairman MacNeil: Jon, I don’t want to cut you short, but, -- 1795
Atty. Chase: I, I, I’ll be very quick – 1796
Chairman MacNeil: -- but you did go over that – 1797
Atty. Chase: Yeah, well, -- 1798
Chairman MacNeil: -- when you first brought it up, so… 1799
Atty. Chase: I, I, I know and I, I, I – 1800
Chairman MacNeil: Again, if there’s something new, just let us know, but -- 1801
Atty. Chase: -- I think that, I just think this is a p-, a point we can’t 1802
leave hanging, John. Attorney Heller, uh, presented, 1803
uh, what were alleged to be and were exhibits to his 1804
testimony, his affidavit, stating that this is the way the 1805
language was before the 1970 public hearing, this is 1806
what it was afterward as the result, presumably, of 1807
taking that public hearing testimony into consideration. 1808
What I will tell you is that exhibits, although I don’t 1809
think there’s numbers on them yet, unfortunately, but, 1810
uh, exhibits that I borrowed from Agnes, one stating the 1811
proposed regulations for the Town of Montville, July 1812
1970, that the, that the Commission minutes indicate 1813
are the ones that went to the public hearing and the 1814
adopted regulations, effective October 14th, 1970, are 1815
identical. There’s no distinction, Section 3.12 or the 1816
table below or of the table below. They’re identical. 1817
These are the versions that exist on file in Town Clerk’s 1818
office and because, while they are, these excerpts are 1819
exhibits. In other words, the excerpted cover and 1820
regulation itself, your Regulations are law, you can 1821
refer to them, you don’t need them to be in evidence. I 1822
will, in fact, note to the Town Clerk tomorrow morning 1823
that those items which she was very helpful in finding 1824
and digging out for me, may be required by you folks, 1825
but you will find, I’m very confident, that the version 1826
that went to the public hearing and the version that was 1827
intact without change of this regulation, after the 1970 1828
public hearing, did not change. So, I simply disagree 1829
with Attorney Heller’s version of events in that regard. 1830
Um, that is, um, I think really, uh, oh, one other thing 1831
that I submit to you was, perhaps, not accurate. Not 1832
only with respect to prior versions of these regulations, 1833
but the distinction between the situation here today with 1834
this property and that that existed in the Cockerham 1835
case several years ago. Judge Purtill didn’t dwell at 1836
length on this aspect, but one key difference was that 1837
Mr. Bialowans, the property owner there, had 1838
significantly relied on that permit, as evidenced by his 1839
having largely built the house, almost finishing that 1840
house, before the day we just happen to notice standing 1841
here that that permit had expired. There was no such 1842
reliance here. Ground wasn’t even broken. We’re 1843
squarely at the regulation that says that permits expire 1844
within a year unless all work has been, uh, completed 1845
and, of course, we’re squarely, uh, as I said earlier, at 1846
the requirements, uh, themselves, uh, concerning, uh, 1847
the, um, uh, the renewal process as Judge Purtill found 1848
it to be, found it to consist of, based on the prior 1849
testimony of Mr. Sanders. Judge Purtill was very 1850
specific and I’ve given you the example he was 1851
referring to of what a renewed permit is, such as it is. 1852
Okay. Um, yeah, the difference is this, the difference is 1853
also that, not contrary to Attorney Heller’s statement, 1854
that in this instance work has not been commenced, 1855
matter of fact, there’s evidence before you as in the 1856
affidavit of Paul Chase, that the house has been built. 1857
The house has been built upon a permit that not only 1858
expired under the regulations, was not renewed under 1859
the regulations, and was not renewed in accordance 1860
with what Judge Purtill says a renewal is in the Town of 1861
Montville. So, maybe that was a misstatement and I’m 1862
willing to give the benefit of the doubt as I always am, 1863
but, uh, the statement that, in this instance, work has not 1864
been commenced in contrast to the situation of the 1865
Cockerham case is, it, it, it just staggers me based on 1866
the facts that are reflected in the evidence. So, thank 1867
you very much. 1868
Chairman MacNeil: Thank you, Jon. Would anyone else like to speak, uh, 1869
on this application in favor or against? 1870
Atty. Heller: For the record, again, Harry Heller. Uh, start with a 1871
correction, Attorney Chase, on at least two occasions, 1872
referenced this lot as being 11/100ths of an acre, in fact 1873
it is not, it’s about a third of an acre. It’s 13,683 square 1874
feet based upon the plan that was submitted with the 1875
zoning permit application. The question was raised as 1876
to what controls are there on what size lots may be built 1877
on. And Mr. Chairman, I think, your response was 1878
completely accurate. If you look at Section 5.21, which 1879
was the original ordinance, it indicates that lots subject 1880
to the provisions of Section 5.21 shall not be built upon 1881
unless the Health Officer shall certify in writing to the 1882
Zoning Agent as to the adequacy and safety of the 1883
sewage disposal system and water supply. So, the 1884
public health code, as well as zoning, are the limiting 1885
factors and you can’t build on a lot that’s 10 x 10. In 1886
fact, you cannot build on a lot that is very much smaller 1887
than the lot in question because you will not be able to 1888
satisfy the requirements of the public health code. That 1889
is the limiting factor. Um, Attorney Chase indicated 1890
that whether the Zoning Enforcement Officer is wrong 1891
50 times in the past doesn’t matter on determining what 1892
the legislative intent of the Zoning, Planning and 1893
Zoning Commission is. In the abstract, I agree with 1894
that, but the Planning and Zoning Commission interacts 1895
with the Zoning Enforcement Officer on a twice 1896
monthly basis. The Zoning Enforcement Officer 1897
submits a report on a twice monthly basis to the 1898
Planning and Zoning Commission. They have 1899
knowledge of the actions of the Zoning Enforcement 1900
Officer and this wasn’t one Zoning Enforcement 1901
Officer, this was four different Zoning Enforcement 1902
Officers who issued zoning permits for single-family 1903
residences on lots which were both less than the 1904
required lot area in the district and which have less than 1905
the required lot frontage in the district, in several cases 1906
zero lot frontage. 1907
Chairman MacNeil: So, it was a combination in those -- 1908
Atty. Heller: -- combination of the -- 1909
Chairman MacNeil: -- of all of those -- 1910
Atty. Heller: -- of those factors. And, if that was inconsistent with 1911
the legislative intent of the Planning and Zoning 1912
Commission, the Commission would have, one, either 1913
corrected the actions of the Zoning Enforcement 1914
Officer or, two, revised the regulation. The fact that no 1915
action was taken is indicative of the intent of the 1916
Planning and Zoning Commission, going back to 1970, 1917
to provide protection for these kinds of lots. And, 1918
again, thank you. 1919
Chairman MacNeil: Are you still, are you okay still Jon? 1920
Atty. Chase: I am okay. 1921
Chairman MacNeil: Alright, is there anyone else who would like to speak in 1922
favor, in opposition, any questions, comments, before I 1923
entertain a motion to close this public hearing? Hearing 1924
none…Um, I’d like to, um, I’d like to make a motion to 1925
close, um, Application, uh, 213-ZBA-2, um, is there a 1926
second? 1927
Board Member Adams: Second. 1928
Chairman MacNeil: A motion made and a second. All in favor, say aye. 1929
Board Members: Aye. 1930
Chairman MacNeil: Opposed? So moved. It’s closed. Old business. Um, 1931
now, o-, old business, um, I’m going to bring up, um, 1932
application A, uh, Paul E. Chase 213-ZBA-2: An 1933
application for an appeal of the decision of the Zoning 1934
Enforcement Officer for the issuance of a Zoning 1935
Permit to Green Falls Associates, LLC, for a three-1936
bedroom home on the property located at 310 Cherry 1937
Lane, Oakdale, Montville, CT. As shown on 1938
Assessor’s Map 53, Lot 3. Um, I, in order to get discu-, 1939
to get to a discussion on this, um, I’d like to, I, I’ll 1940
make a motion, um, just so we could entertain some 1941
discussion. I’m going to make a motion, um, to deny, 1942
um, this application, um, so, t-, t-, to simply expla-, to 1943
clarify, that would be to uphold, um, the, um, the 1944
issuance of the, uh, the zoning permit that was made by 1945
the ZEO. Um, tha-, tha-, um, having made that motion, 1946
is there a second? 1947
Board Member Adams: Second. 1948
Chairman MacNeil: Motion made and a second. Discussion. Um, I’d like 1949
to start the discussion out with saying, there’s been a lot 1950
of stuff said, a lot of stuff submitted, um, and lot of it 1951
probably has merit. Um, my, before we start to talk or 1952
even consider talking about whether or not, what the 1953
regulations really meant, wa-, was ‘or’ and ‘and’, um, 1954
and all that, that, uh, that interesting, uh, dialogue that 1955
went by, uh, that went before us, and also, um, whether 1956
or not, uh, we can entertain environmental impacts and, 1957
and, um, and this, and these other issues. I think that in 1958
orde-, for us to get to that discussion, we have to 1959
determine whether or not we even need to talk about 1960
that, and that’s whether or not, we, uh, the applicant, 1961
um, submitted the application in time, uh, before the 1962
30-day period had lapsed post notice. So, before we 1963
talk about all this other stuff, we have to decide whether 1964
or not, um, it was a, it was timely, the application came 1965
before us. Not whether or not it was it renewed in time 1966
and all these other things that came before us because, 1967
frankly, um, all of that other stuff after we couldn’t, um, 1968
uh, sift through without our attorneys going through it 1969
and advising us to, you know, because obviously, 1970
there’s a lot of, there’s, you know, we’re talk-, 1971
attorneys are discussing the matter. But, it seems to 1972
me, fairly clear to me, from what I’ve heard and, um, 1973
that this application fell short of the, um, based on the 1974
notification that was put in the paper and the 1975
explanation that I have heard that, clearly, it didn’t, um, 1976
meet the constraints of the appeal. So, it’s my opinion 1977
that we don’t discuss anything further, just to start out, 1978
my opinion is that it, it, it fell short of that and we can, 1979
and rather than talk about whether or not there are 1980
merits beyond that, I don’t think we actually have 1981
reason to do that because either it’s before us properly 1982
or not. That’s where I’m at. 1983
Atty. Carey: Mr. Chairman? 1984
Chairman MacNeil: Go. 1985
Atty. Carey: If I might interject? 1986
Chairman MacNeil: Sure. 1987
Atty. Carey: Um, I think the point you’ve raised is the perpetual 1988
question of (inaudible). I’m not sure, though, that I 1989
would suggest that if the Board were inclined to find 1990
that the application was untimely (inaudible) some 1991
explorations should be made at least to some of these 1992
other issues (inaudible) 1993
Chairman MacNeil: But, -- 1994
Atty. Carey: Frankly, any basis, if there is going to be a denial, any 1995
basis for denial, (inaudible) put in the record. In the 1996
event that, somehow, (inaudible) the Board was wrong 1997
in saying that the application wasn’t filed on time. 1998
Chairman MacNeil: If, let me ask you this, if, I think we’ve been here 1999
before, if we, if the, the Board denied this application 2000
and it was just because it wasn’t timely, we would just 2001
get it back? No? And, then, at that point -- 2002
Atty. Carey: I can’t, I can’t guarantee that that will be -- 2003
Chairman MacNeil: Okay, so, in other words, it could be overturned -- 2004
Atty. Carey: (inaudible) 2005
Chairman MacNeil: Okay, I mean, at this point, I mean, that’s, so, in, in, in 2006
the way I’m looking at it is, this is my simple layman’s, 2007
it’s like, we, before we discuss all this other stuff or a-, 2008
or layer on to it, aren’t we saying, well, if, or are, or are 2009
we saying, if we’re wrong, yeah, this. And, maybe, 2010
maybe we would approve it. In other words, if we 2011
thought it was in time, we might find in favor of the 2012
applicant, I don’t know that. 2013
Atty. Carey: Well, I think that would be something to explore. I 2014
mean, if, if you all buy this argument about ‘or’ -- 2015
Chairman MacNeil: Yeah, but again, that’s another whole other discussion 2016
that I’m not sure that it’s appropriate for us to have, I’m 2017
trying to ask that, I mean, because it’s -- 2018
Atty. Carey: and, and, and (inaudible) because the applicant 2019
submitted that petition, I think we, I should examine a 2020
couple of things. If that’s a valid petition (inaudible) 2021
contains the kind of information the Statutes and the 2022
case law requires for a valid, formal petition, um, and if 2023
it embraces issues that are within this court’s 2024
jurisdiction with regard to environmental matter, which 2025
at this point, I don’t (inaudible) -- 2026
Chairman MacNeil: I don’t understand, now. 2027
Atty. Carey: I think it would be hard to -- 2028
Chairman MacNeil: You’re the attorney, how does it matter what is bought 2029
before us if we’re not, basically if the application is not 2030
timely, we can’t hear anything. I mean, if it, if it’s not 2031
here you can bring anything you want, even though it’s 2032
valid and it might be a concern, why am I entertaining 2033
anything because that has nothing to do with, you’re not 2034
supposed to be here. We can’t hear you because it’s, 2035
legally, we can’t, so, I mean if I, if we pile on anything 2036
or approve something, it’s like, we’ve got to get past 2037
this first, and that’s, that’s the most simplistic, I mean 2038
I’m trying to keep it, you know, keep the attorney stuff 2039
out of it and try to get to a -- 2040
Atty. Carey: I agree, I agree and, uh, to an extent, and, you know, I 2041
understand that people are not going to be around for 2042
the next meeting and -- 2043
Chairman MacNeil: Well, yeah, again, I don’t want to, I don’t want to 2044
shorten it because of we might have a quorum issue, 2045
you know. I, obviously, want to do it in a timely 2046
manner, but I’m not inclined to go any farther to 2047
entertain anything, in my opinion, because I don’t think 2048
we should be listening to anything if we’re, this 2049
application fails to meet the standar-, or to, to meet the 2050
requirement of us hearing it in the first place. So, it’s 2051
like, kind of like, we’ve heard all this stuff, it’s like we 2052
just ca-, it’s almost would be better if we could have 2053
heard it from both sides and made a decision whether or 2054
not we had to hear the rest of the testimony and if, and 2055
if it was favorable, then we could have went forward 2056
but -- 2057
Atty. Carey: Part of the problem with that (inaudible) we’ve heard 2058
an awful lot of stuff (inaudible) -- 2059
Chairman MacNeil: Right. And, again, we didn’t hear that, about the notice 2060
until later on and then, we, we’re right in the middle of 2061
it. So, I’m inclined to, you know, not, not entertain 2062
anything else other than, uh, to first decide this. 2063
Atty. Carey: There’s a second jurisdictional issue, too. (inaudible) 2064
Attorney Heller raised about the contents of the original 2065
(inaudible). 2066
Chairman MacNeil: Right. 2067
Atty. Carey: Um, in terms of it being (inaudible) and not meeting the 2068
requirements of the Statute. The Statute requires that 2069
these applications (inaudible) a specific statement of the 2070
grounds. So, the fact that this Town has a form that just 2071
has a couple of boxes to check (inaudible) can’t 2072
supersede the Statute. I, I just, I would just say that I 2073
have no desire to (inaudible) but, um, I would just say 2074
that given the amount of stuff that you’ve been (handed 2075
tonight in the second round of this hearing), um, that it 2076
might be prudent to have (inaudible) make a decision 2077
(inaudible) rather than making any decisions tonight 2078
based on (inaudible) jurisdictional issues (inaudible). 2079
Chairman MacNeil: Um, I don’t want to be a cowboy, but I would rather get 2080
this over with tonight. 2081
Board Member Adams: I’m ready to ge-, this, see all this here? It’s irrelevant to 2082
me, this is all, all this stuff that you fed us, I’m not 2083
going to read this. I’m telling you right now. I’m not 2084
going to read it. 2085
Chairman MacNeil: But, just to be fair, if, if -- 2086
Board Member Adams: I’m ready to be a cowboy. I have no problems. 2087
Chairman MacNeil: No, no, no, I know, but, but, I’m, I’m, I’m kidding, but 2088
what I’m saying, but the stuff in here, we obviously ca-, 2089
and it’s interesting for us to have, but our attorney 2090
would advise us on, you know, his opinion – 2091
Board Member Adams: (inaudible) 2092
Chairman MacNeil: So, so, obviously, that, that’s just the name of the, the 2093
course of things. But, again, Mike is trying to, uh, uh, 2094
advi-, um, uh, Attorney Carey’s trying to, you know, 2095
give his, us his advice, that’s why he’s here and -- 2096
Board Member Adams: He’s trying to stop us from getting into trouble. 2097
Chairman MacNeil: Well, yeah. 2098
Atty Carey: Well, I think it would be better to, to let me look 2099
through this stuff. (inaudible) to read through 70 pages 2100
of transcripts from 35 years ago, either. -- 2101
Board Member Adams: I agree. 2102
Atty. Carey: -- but, and, and, and to put together some findings for 2103
you to kick around and then make a decision at your 2104
next meeting, but Mr. Adams isn’t going to be there. 2105
Chairman MacNeil: Yeah, he’s not going to be here. 2106
Atty. Carey: (inaudible) 2107
Chairman MacNeil: So, let me ask you this, Mike. If, in fact, we feel that, 2108
uh, if the, the rest of the Board members feel that this, 2109
the, uh, the notice was not timely, um, if, in fact, it was 2110
not timely, we have all this other data that is, um, 2111
necessary post us finding that it’s timely. So, now, 2112
what you’re saying is you want to do is look through it 2113
and see the relevance, but does it have any relevance to 2114
whether or not it was timely? 2115
Atty. Carey: (inaudible) No, no. (inaudible) 2116
Chairman MacNeil: Right. And, and, and anything that is submitted. It’s 2117
like, I’m trying to determine whether or not and I, and I 2118
know, I know you’re doing your, your doing your-- 2119
Atty. Carey: (inaudible) on the other hand, as I say no (inaudible) 2120
Chairman MacNeil: Right. 2121
Atty. Carey: (inaudible) came out of nowhere (inaudible) 2122
Chairman MacNeil: Right. 2123
Atty. Carey: (inaudible) I don’t mean that (inaudible). I’m just 2124
saying it was unexpected. I, I just think it wouldn’t hurt 2125
to come back to you next meeting, even if Mr. Adams 2126
isn’t be here, and have, have a motion put together for 2127
you to kick around and deal with (inaudible). 2128
Chairman MacNeil: I think that, um, there’s a petition, in my opinion, you 2129
could see where I’m going, there’s a petition where 2130
either we go forward and wait for you to write 2131
something up, but either, either there’s merit, either the, 2132
either the, um, we’re going to consider that we find that 2133
this was timely and, then, the rest of it’s relevant or we 2134
find it’s not timely. If we find it’s not timely and then 2135
we pile on, if there’s something to defeat it or grant it, 2136
I’m fo-, I think it kind of self-defeats one. I mean, 2137
again, i-, it’s a clear petition in my mind. Not to, uh, try 2138
to override you, but it’s like, okay and I know what’s 2139
going to come, um, is, okay, now, we’ve got four 2140
people next week, and we’re three and it’s time and it’s 2141
extensions and we’re going to be talking in next 2142
December, you know, let the appeals fly, I mean, you 2143
know, I, I -- 2144
Atty. Carey: (inaudible) my advice is what it is and – 2145
Chairman MacNeil: Okay. 2146
Atty. Carey: (inaudible) 2147
Chairman MacNeil: Okay. 2148
Atty. Carey: I advise the Board to (inaudible) 2149
Chairman MacNeil: Okay, thank you. Any other discussions? What do you 2150
guys think? 2151
Board Member Freeman: I think it would be prudent to listen to our attorney. 2152
Chairman MacNeil: Okay. 2153
Board Member Aquitante: I second on him. 2154
Chairman MacNeil: How about you Ellen? Ellen? 2155
Board Member Lakowsky: Well, I listen to them both very carefully and they 2156
always present themselves very well and then I have to 2157
think (laughing). 2158
Board Member Freeman: And, I guess I have one question that if we decided to 2159
put it off, we know of one member who’s not going to 2160
be here, who is, it’s mandatory that he be here to make 2161
the -- 2162
Chairman MacNeil: Well, we have, a quorum is four. 2163
Board Member Aquitante: I’ll be here. 2164
Chairman MacNeil: Right. And, well, we know it’s only going to be four 2165
and we all have to be not sick and show up -- 2166
Board Member Freeman: I’ll be here. 2167
Chairman MacNeil: Well, just so you’ll know, um, you know, there also 2168
could be the applicant had some point ha-, ha, has 2169
raised, um, concerns that there be at least five members 2170
present, -- 2171
Board Member Freeman: I remember. 2172
Chairman MacNeil: -- even though we have the right to do four and, we’ll 2173
probably be -- 2174
Board Member Freeman: That was going to be my next question. 2175
Chairman MacNeil: Well, so, I mean, and, again, we can’t, you know, I 2176
think that, you know, that I, um, I, I, I take Mr. Carey’s 2177
advice and, um, I have a difference of opinion and I’m 2178
not an attorney and you guys have a mind of your own, 2179
so if you want to continue it and go from there, we’ll, 2180
what’s that Mike? 2181
Atty. Carey: In another town (inaudible) Zoning Commission 2182
Chairman, (inaudible) chastises me for sticking my 2183
(inaudible) -- 2184
Chairman MacNeil: Well, we, we’re paying you to do that. 2185
Atty. Carey: That’s what I thought, too, but anyways, I was chastised 2186
a couple times. In fact, I was almost, I was basically 2187
told to leave. 2188
Chairman MacNeil: Yeah? 2189
Atty. Carey: Anyways, um, Mr. Adams is not going to be here 2190
February… 2191
Chairman MacNeil: Fifth. 2192
Atty. Carey: Fifth. Um, when are you leaving Mr. Adams? 2193
Board Member Adams: February 1st. See, I’m getting the impression that 2194
you’re going to draw up something that you’re going to 2195
want the Board, hopefully, to go by. That’s what I’m 2196
getting out of the conversation. 2197
Atty. Carey: Yes, sir. 2198
Board Member Adams: So, whether I’m here or not is very irrelevant. 2199
Atty. Carey: Well, except that it’s always -- 2200
Board Member Adams: Am I right? 2201
Atty. Carey: If we have a deliberation (inaudible). 2202
Board Member Freeman: Can we schedule a special meeting? 2203
Atty. Carey: That’s what I was getting at. If we have a meeting, 2204
like, the last week in January and we can just deal with 2205
it then. 2206
Board Member Adams: Just go with the flow. I could, absolutely. 2207
Atty. Carey: Is everyone going to be here? Is anyone going to 2208
Florida or Antarctica? 2209
Board Member Aquitante: Just give me a week notice. 2210
Board Member Freeman: I think we should pick a date, check our personal 2211
calendars and make sure there’s no conflicts. 2212
Chairman MacNeil: Yeah, we don’t, obviously the public is welcome to 2213
come, but the public hearing is closed, so-- 2214
Board Member Freeman: I mean, like, like, this meeting, we put on our calendars 2215
and we make sure nothing gets in -- 2216
Atty. Carey: (inaudible) a special meeting, uh, (inaudible) special 2217
meetings (inaudible) and, uh, usually when this sort of 2218
thing comes up, (inaudible) if this room’s available or a 2219
room’s available. 2220
Chairman MacNeil: Yeah, well, so we won’t be able to set a date, but we 2221
will and will have to be noticed -- 2222
Atty. Carey: No, we just have to post the agenda for the special 2223
meeting -- 2224
Chairman MacNeil: Yeah, well, so many people will have to know. So, I 2225
mean, do we want to put a, I don’t know, I don’t know -2226
- 2227
Board Member Adams: Well, let me, well, why can’t it be put off ‘til March? 2228
And, I’ll tell you why I ask. The house is already built. 2229
Nothing’s going to change. Why can’t we put it off ‘til 2230
March? 2231
Chairman MacNeil: We have a, we also have a time, um, constraint without, 2232
um, that we have to make a decision on and I don’t 2233
know where that falls. 2234
Atty. Carey: I believe it goes into March, sir. 65 days? But, frankly, 2235
I think we’d be better off if we could do it before Mr. 2236
Adams goes (inaudible). 2237
Chairman MacNeil: Can you go in the back room for, like, ten minutes and 2238
figure it out and come back? 2239
Board Member Adams: (laughing) 2240
Chairman MacNeil: I’m just kidding you, Mike. 2241
Board Member Adams: I’m availa, Mike, I’m available anytime so whenever 2242
you guys decide to have the meeting, I’m available. 2243
Board Member Aquitante: Last week of January, January 30th 2244
Atty. Carey: I’m not trying to give anybody a hard time -- 2245
Board Member Freeman: No, no, you’re trying to do what we’re asking you to 2246
do. 2247
Board Member Aquitante: January 29th, when the, that’s the last day of the month. 2248
Board Member Freeman: Is there, is there, how do we find out if this room is 2249
available on the 29th? 2250
Atty. Carey: Well, it doesn’t have to be in this room. 2251
Unknown Board Member: It could be at the Brown Derby! 2252
(laughing) 2253
Unknown Board Member: Happy hour. 2254
Atty. Carey: (inaudible) 2255
Board Member Freeman: January the 29th, the last Wednesday of the month. 2256
Chairman MacNeil: Um -- 2257
Board Member Lakowsky: Does anybody have a calendar? 2258
Chairman MacNeil: I mean, you know what? You want to set it tentatively 2259
for the, since we do Wednesdays, you want to set it 2260
tentatively for the 29th? 2261
Board Member Adams: No. I have 20 steak dinners to cook. 2262
Chiarman MacNeil: Okay. 2263
Board Member Lakowsky: Well, there’s going to be somebody no matter what -- 2264
Unknown Board Member: For us? 2265
Board Member Adams: That could be arranged! 2266
Chairman MacNeil: How about the, how about the 22nd? Does that give you 2267
enough time, Mike? 2268
Board Member Lakowsky: What day is it? 2269
Board Member Freeman: Wednesday. 2270
Chairman MacNeil: It’s a Wednesday. It’s three weeks from t-, uh, not 2271
three weeks, it’s two weeks from today. 2272
Atty. Carey: The 22nd will be fine. 2273
Chairman MacNeil: Does that work for everybody else? 2274
Board Member Freeman: I just have to double-check, but I think so. 2275
Chairman MacNeil: Okay. 2276
Board Member Aquitante: Same time? 2277
Atty. Carey: 1/20-, 1/22? 2278
Chairman MacNeil: Yeah, 1/22 at seven, and, hopefully, we’ll find out what 2279
room, but it’ll have to be… 2280
Board Member Adams: We’ll just all meet up here and then we’ll take it from 2281
there. 2282
Atty. Carey No, no, they’ll know, they’ll post it on the agenda, 2283
they’ll post a notice… 2284
Unknown Board Member: Good. Sounds Good. 2285
Chairman MacNeil: Alright. Then, I’d like to make a motion that we, um, 2286
continue this discussion until, uh, special meeting on 2287
January the 22nd at seven p.m. at a room to be 2288
determined, hopefully this one, is there a second? 2289
Board Member Aquitante: Second. 2290
Board Member Freeman: Second. 2291
Chairman MacNeil: Motion made and a second. All in favor? 2292
Board Members: Aye. 2293
Chairman MacNeil: Opposed? 2294
Atty. Carey: (inaudible) 2295
Chairman MacNeil: 24th? 2296
Atty. Carey: (inaudible) 2297
Chairman MacNeil: We don’t have to be there, right? 2298
Board Member Freeman: (inaudible) 2299
Chairman MacNeil: Yeah, we’re not done yet. 2300
Board Member Freeman: (inaudible) 2301
Chairman MacNeil: Well, these, these guys can go. 2302
Board Member Freeman: Okay. 2303
Chairman MacNeil: We’re still up here. Okay, um, now, -- 2304
Atty. Carey: (inaudible) Thank you. 2305
Board Members: Thank you, Mike. 2306
Chairman MacNeil: Okay, going on to, um, on to item six, um, has e-, I’ll 2307
make a motion, has everybody reviewed or anybody 2308
reviewed the, um, the minutes from December 11th, 20 2309
-- 2310
Board Member Freeman: I have and they look correct to me. 2311
Chairman MacNeil: So, do you want to make a motion to, uh, approve? 2312
Board Member Freeman: I make a motion to approve. 2313
Chairman MacNeil: Is there a second? 2314
Board Member Adams: Second. 2315
Chairman MacNeil: All in favor, say aye? 2316
Board Members: Aye. 2317
Chairman MacNeil: Opposed? Okay, any communications, Tom? 2318
ZEO Mr. Sanders: No. 2319
Chairman MacNeil: Um, any other, uh, business? 2320
ZEO Mr. Sanders: No, sir. 2321
Chairman MacNeil: Okay, I make a motion to adjourn. Is there a second? 2322
Board Member Aquitante: Second. 2323
Chairman MacNeil: Motion made and second. All in favor? 2324
Board Members: Aye. 2325
Chairman MacNeil: Opposed? So moved. 2326