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Appeal No. 213 ZBA-2
DECEMBER 11, 2013
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, December 11, 2013.
25 July 2014
Date Agnes T. Miyuki
Minutes Clerk
Town of Montville
Chairman John MacNeil: I’d like to call the, uh, Zoning Board of Appeals to order, 1
uh, Wednesday, December 11th, uh, Special Meeting, um, 2
it’s about 7:05 p.m., uh, Doug Adams is going to take ro-, 3
roll call. 4
Board Member Doug Adams: I’m gonna’ do a roll call. Um, Doug Adams…here. Greg 5
Bassetti. 6
Chairman MacNeil: Vacancy, he’s gone. 7
ZEO Mr. Thomas Sanders: He’s resigned. 8
Chairman MacNeil: He’s resigned. 9
Board Member Adams: Ellen Lakowsky. 10
Board Member Ellen Lakowsky: Here. 11
Board Member Adams: I’m gonna’, I’m gonna’ put vacancy. 12
Chairman MacNeil: Yeah, I agree. 13
Board Member Adams: John MacNeil. 14
Tom MacNeil: Here. 15
Board Member Adams: Tom McNally. 16
Board Member Adams: Gone. 17
Chairman MacNeil: He’s another – 18
Board Member Adams: He’s gone. 19
Chairman MacNeil: He’s another loser (inaudible). 20
Board Member Adams: (laughing) 21
Board Member Adams: Alright, we got Joe Aqua…tan…te? 22
Board Member Aquitante: Aquitante. 23
Board Member Adams: Aqui…tante? 24
Chairman MacNeil: Aquitante. 25
Board Member Adams: Okay, present, okay. 26
Chairman MacNeil: (And then, the other one) would be Carl Freeman. 27
Board Member Adams: Okay, uh, alternate are Carl Freeman. 28
Board Member Carl Freeman: Present. 29
Board Member Adams: Very good. 30
Chairman MacNeil: Okay, we have some new business, uh, next on the agenda, 31
that’s Election of Officers.…Now to get it going, I’ll just 32
make, um, a motion, uh, to keep the slate as it was last year. 33
Is there a second? 34
Board Member Freeman: Second. 35
Chairman MacNeil: Motion made and second. Discussion. 36
Board Member Lakowsky: Very satisfied. (laughing) 37
Unknown Board Member: Okay. 38
Chairman MacNeil: All in favor? 39
All: Aye. 40
Chairman MacNeil: Opposed? 41
Chairman MacNeil: I’d like to, um, say welcome to our newest Board Member 42
Joe Aquitante. 43
Board Member Aquitante: Yep. 44
Chairman MacNeil: I’m sure I got it wrong. 45
Board Member Aquitante: No, you got it. 46
Chairman MacNeil: Um, next item on the agenda is a public hearing. I 47
apologize for getting late, a little late start. We had a 48
temporary, we had, uh, a new, uh, kinda’ disheveled with, 49
uh, a new, um, secretary for tonight replacing ours, but 50
we’re (sic) seem to be on track now. 51
First public hearing is, um, Paul E. Chase 213 ZBA-2 an 52
application for an appeal of decision of the Zoning 53
Enforcement Officer for the issuance of the zoning permit 54
to Gre-, to Green Falls Associates, LLC, for a three-55
bedroom home for a property located at 310 Cherry Lane, 56
Oakdale, Montville, Connecticut, as shown on Assessor’s 57
map 53, lot 3. Now, uh, today, since this is, um, 58
questioning the, um, action of the Zoning Enforcement 59
Officer, Tom is not going to be participating and, um, 60
Town Counsel Mike Carey is going to be helping us out. 61
Now we’ve already gotten the, we don’t have the 62
application yet in front of us yet, do we?…No, we don’t. 63
ZEO Mr. Sanders: No, you don’t. 64
Chairman MacNeil: You got the applications?…Thank you. Okay, we have the 65
applications in front of us. Typically, we ask for a staff 66
report. At this time, I’ll ask, um, Attorney Carey if you’d 67
like to make any comments, questions, or about this 68
application at this time or shall we just let the application, 69
the applicant, um, come before us and state his reasons for 70
this appeal, uh, for this, uh, action. 71
Attorney Mike Carey: Correct. 72
Chairman MacNeil: Okay. 73
Atty. Mike Carey: I don’t have anything to say at this point. 74
Chairman MacNeil: Alright, um, so, first time seeing this application. I’ll let 75
the, uh, I’ll call for the applicant to come up and make his 76
presentation if, uh, he could. 77
Attorney Jon Chase: Uh, Good evening, uh, ladies and gentlemen. Uh, my name 78
is Jon Chase, uh, with me tonight is the appellant, uh, Paul 79
Chase, uh, who’s standing behind me. Sorry about the 80
confusion about the names. We’re related, uh. Uh, in any 81
event just, uh, just as some, uh, a couple of, uh, preliminary 82
matters, uh, that, uh, that, uh, I’m sure Attorney Carey can, 83
can help me, uh, sort out here, uh, so that we clarify, just 84
for the record, how it is that, uh, we’re, we’re proceeding 85
here. First of all, I, I note, uh, five of you, uh, sitting up 86
there, uh, and, uh, obviously, uh, welcome to, uh, Mr. 87
Aquitante, uh, to cover tonight, um. It is true that in a past 88
proceeding concerning the same parcel of land, uh, Mr. 89
MacNeil, uh, Mr. Chairman, you had recused yourself on 90
the basis of a. owning property nearby which, I believe, is 91
still the case, uh, i-, i-, in terms of your residence and also 92
having a previous interest in, perhaps, purchasing this 93
property. And, for those reasons, back in 2011, I do have a 94
copy of the minutes of this Commission, you indicated that 95
you were recusing yourself. May I ask you, for the record, 96
have either of those things changed? In other words, I 97
don’t think it’s possible that, uh, your, your, your past 98
interest in purchasing the property could change that was 99
what was and you still do live, uh, near-, nearby the 100
property in question. 101
Chairman MacNeil: Yes, the proximity, uh, wasn’t a reason for my, uh, 102
recusing myself last time, but I did mention it. However, 103
uh, I did, wa-, I occasionally will build a house and I was 104
interested in purchasing the property -- 105
Atty. Chase: Yes. 106
Chairman MacNeil: -- and, um, it was too close to that ti-, time so I thought it 107
would be best if I didn’t, um, didn’t sit on it. So, as being a 108
conscientious, I did. Um, that application, this application, 109
goes to the same address. It’s a different application and I, 110
I, personally, see no financial interest one way or the other 111
in this property. Could care less if the house is there or not 112
so, personally, um, as I looked at it before, I thought I was 113
a little too close to a purchase myself. Now, I’m so far 114
from that, I see no, there is, there’s no, personally, there’s 115
no interest in this property that would cause me reason to 116
be recused. 117
Atty. Chase: Well, as you know I have to raise questions like this -- 118
Chairman MacNeil: Go right ahead. 119
Atty. Chase: -- for the record, which was, which was my point in doing 120
so. 121
Chairman MacNeil: Right. Understood. 122
Atty. Chase: If you’ll indulge me just for a moment, what I would like to 123
do is, uh, is introduce into, uh, evidence a copy of the 124
minutes from that prior proceeding that we (inaudible) -- 125
Chairman MacNeil: Jon, Jon, so we don’t get too far, would you rather not have 126
me here and have four people seated, I’ll be glad to do that 127
if you think it’s going to taint your application in any way. 128
Atty. Chase: Well, I think that’s up to you. 129
Chairman MacNeil: Oh, I know it’s up to me, but, I’m asking you, you’re 130
raising it for a reason and I don’t want the Town to have to 131
be, you know, dragged down on a, because I sat on this, it’s 132
going to taint whatever decision this Board’s made. I’m 133
acting in the Town’s best interest. I told you, I don’t know 134
what the minutes were, you’re gonna’ want to show ‘em to 135
me. I want to get to, let’s get to the meat. Do you want me 136
to sit here and act in good conscience or would you prefer 137
me, would you feel better, I’m offering you my — because 138
we have four members here — so, you can have, you can 139
have a quorum without me and I’m perfectly fine with that, 140
if you like it. 141
Atty. Chase: Well, I, I agree that I can have a quorum without you. If, if 142
you’ll give me just a minute to review the minutes from 143
that prior proceeding against what you’ve just told me and 144
(inaudible) -- 145
Chairman MacNeil: Now, again-- 146
Atty. Chase: -- (I can) answer your question at that point. 147
Chairman MacNeil: As far as reviewing it, I’m sure you know what it was, 148
you’re bringing up, you’re getting ready to say it, so -- 149
Atty. Chase: And, I have it in front of me, John. 150
Chairman MacNeil: Um, let me ask Tom. . . , uh, Mike, I mean, any input? 151
Atty. Carey: I don’t think you should saying anything else until Mr. 152
Chase gives you a copy of the (inaudible) -- 153
Chairman MacNeil: Okay, go ahead. 154
Atty. Carey: I also don’t think you’re subject to cross-examination. 155
Chairman MacNeil: Yeah, well I -- 156
Atty. Carey: You’ve explained your position, but I think, in fairness, Mr. 157
Chase is going to put the minutes into the record that you 158
are (inaudible) -- 159
Chairman MacNeil: Okay. 160
Atty. Carey: -- (inaudible) a chance to look at whatever they record you 161
having said the last time and then give your response and 162
be done with this. 163
Chairman MacNeil: Alright. 164
Atty. Chase: And, I’m certainly not opposed to cross-examination. 165
Chairman MacNeil: (laughing) Anymore? Okay.… [speaking in low voice] It’s 166
really coming out over here, isn’t it, Carl? 167
Board Member Freeman: [speaking in low voice] It is. 168
Board Member Adams: [speaking in low voice] (inaudible) going to be cold. 169
Board Member Freeman: [speaking in low voice] Shall we move over? 170
Chairman MacNeil: [speaking in low voice] Nah, (inaudible) be satisfied in a 171
minute, it’ll shut off, I hope. 172
Board Member Adams: [speaking in low voice] (inaudible) 173
Chairman MacNeil: [speaking in low voice] Yeah, that was just my reason, that 174
I said I was interested in purchasing the property 175
(inaudible) 176
Board Member Adams: [speaking in low voice] (inaudible) 177
Chairman MacNeil: [speaking in low voice] (inaudible) ask. 178
Board Member Adams: This should be submitted, right? 179
Chairman MacNeil: Yeah, I mean, I think it’s…Could I show this to you, uh, 180
Mike. Is that appropriate for you to see? Or, do you have a 181
copy of it? 182
Atty. Carey: (inaudible) Somebody was kind enough to (inaudible) 183
Chairman MacNeil: Yup, yup. 184
Atty. Carey: (inaudible) 185
Chairman MacNeil: Okay, that’s pretty much what you just said. What’s your 186
pleasure? You’re the applicant. And, again, I’m not going 187
to, I, I want to be able to keep this as clean as possible, if 188
you think that because I wanted to purchase that property at 189
one point and I live nearby. First of all, the living nearby, 190
was a comment that I made, but that wasn’t the reason for 191
it. 192
Atty. Carey: Chairman? 193
Chairman MacNeil: Yes. 194
Atty. Carey: You, you explained why you do not feel you have 195
(inaudible) -- 196
Chairman MacNeil: Right. 197
Atty. Carey: -- and, I think you’ve at least, implied that you can, uh, 198
decide this application, (inaudible) based on what you, the 199
evidence that is presented to you (inaudible) -- 200
Chairman MacNeil: I, I, believe me, I’m just trying to accommodate the 201
applicant and the Town at the sa . . . the Town’s best 202
interests. 203
Atty. Carey: (inaudible) you decide that, in good faith, that (inaudible). 204
In two years, things change and, so, I think that’s your 205
position in good conscience, you’ve stated, you’ve stated in 206
good conscience, you feel you can act in (inaudible) -- 207
Chairman MacNeil: Okay, well -- 208
Atty. Carey: -- on a clean slate. 209
Chairman MacNeil: Alright, well. You’re, whatever, that -- 210
Atty. Chase: That’s, that’s all I can ask, is that you take a position, you 211
know, you know, accordingly. 212
Chairman MacNeil: Okay. My position is that I don’t have a conflict any 213
longer. 214
Atty. Chase: Well, that’s fine. We can, we can proceed, then. 215
Chairman MacNeil: Very good. 216
Atty. Carey: If you, if you had one before. 217
Chairman MacNeil: R-, right, right. 218
Atty. Chase: Right. It was my understanding that you contended before 219
that you had had one, and so, for the record, -- 220
Chairman MacNeil: Right, you wanted to bring it up. 221
Atty. Chase: -- to clarify whether that it still exists (inaudible). 222
Chairman MacNeil: Another day, another application (understand) the same 223
address, though. 224
Atty. Chase: I don’t have any problem with proceeding. 225
Chairman MacNeil: Okay. 226
Atty. Chase: I appreciate that. 227
Chairman MacNeil: Alright. 228
Atty. Chase: Okay.…The nex-, the next matter of housekeeping that I’m 229
going to take care of is that I’m going to present, uh, uh, I 230
guess, to Mr. Carey, or I’ll, uh, or, or, uh, or, or, uh, if, un, 231
he would rather I, uh, present to, uh, Mr. Adams, copies of 232
letters that were sent to the abutting property owners along 233
with, uh, copies of, uh, postal mailings (inaudible) -- 234
Chairman MacNeil: I think you can give it to our secretary, please. 235
Atty. Chase: That’s fine, that’s fine. Let me just, uh, and, uh, they do 236
include, uh, a copy of the, uh, notice of hearing that was 237
mailed to me, uh, by the, uh, Planning and Zoning staff and 238
these were sent to the two abutting property owners, uh, to 239
Mr. Paul Chase, uh, uh, and, uh, Mrs. Chase, uh, and also 240
to a, uh, a Helga Butler in Rhode Island. 241
Atty. Carey: Mr. Chairman, I think it might be better, if, if just, if Mr. 242
Adams, if you are keeping them as exhibits and (inaudible). 243
Chairman MacNeil: He can. 244
Board Member Adams: I can. 245
Atty. Carey: Yeah, I think that would be best thing to do. 246
Chairman MacNeil: Alright. This is a little new, new ground we’re covering 247
here. 248
Atty. Chase: That, That’s fine. And, that’s why I -- 249
Board Member Adams: I think it’s all going to end up in the same -- 250
Atty. Carey: I don’t want to change your, your -- 251
Chairman MacNeil: Okay. Usually the, uh, secretary -- 252
Atty. Carey: (inaudible) 253
Chairman MacNeil: -- usually the secretary marks the exhibits. 254
Atty. Carey: Alright. 255
Chairman MacNeil: Yeah, so that’s how usually it works. 256
Atty. Carey: That’s how you usually do it. 257
Chairman MacNeil: Yes. 258
Board Member Adams: Yes. 259
Atty. Carey: The secretary being Mr. Adams or… 260
Chairman MacNeil: No, the secretary meaning the recording secretary, if you 261
will. 262
Atty. Carey: (inaudible) to do that. 263
Chairman MacNeil: Right. 264
Atty. Chase: Well, what I will do then is to pass the exhibits to the 265
secretary -- 266
Chairman MacNeil: She can mark them. 267
Atty. Chase: -- who will pass them along and make copies -- 268
Chairman MacNeil: Correct. 269
Atty. Chase: -- for everyone -- 270
Chairman MacNeil: Okay. 271
Atty. Chase: -- with, with the exception of these -- 272
Chairman MacNeil: Correct. 273
Atty. Chase: -- notices, because normally, we just, you know, present 274
these as single copies. 275
Chairman MacNeil: Tom has some stickies or something. 276
Board Member Adams: Are these new or old? 277
Chairman MacNeil: No, these are, these are new ones. 278
Atty. Chase: They’re barely new; they were (inaudible). 279
Chairman MacNeil: These are the new notices. 280
Board Member Adams: Okay, I want to make sure we weren’t talking about 2011. 281
Chairman MacNeil: No, no. 282
Atty. Chase: No, they’re not notices of a -- 283
Board Member Adams: Okay 284
Atty. Chase: -- previous time. 285
Board Member Adams: Okay. 286
Atty. Carey: Mr. Chase, are these the first, I think the minutes are the 287
first exhibit (inaudible), the minutes you just gave to Mr. 288
MacNeil -- 289
Chairman MacNeil: Those minutes. 290
Atty. Carey: I think that’s exhibit one. (inaudible) So these would be 291
two and three. 292
Chairman MacNeil: And, you have a copy of those minutes already down there? 293
Atty. Carey: I have the minutes. 294
Chairman MacNeil: Okay. Okay, I’ll log it. This is one. 295
(inaudible conversation) 296
Chairman MacNeil: Oh, yeah, that’s right. So, she can have it. (inaudible) this 297
is for the, uh, oh, everybody’s got one. 298
Board Member Adams: Someone should take the, the exhibit one, you guys want 299
this? 300
Chairman MacNeil: Can you pass this around? 301
Board Member Adams: Keep everything in order? 302
Chairman MacNeil: The original. Yeah, she’s got it. You can leave it up there. 303
Let ‘em collect it. Did you get a copy of this? 304
Board Member Freeman: Do I give this to her? 305
Chairman MacNeil: No, no, they’ve got one already. These are just copies, 306
Carl. 307
Board Member Freeman: Oh. 308
Chairman MacNeil: Okay. 309
Atty. Chase: Okay. Next we’re going to address the issue of 310
aggrievement, uh, under the, uh, regulations and under the 311
statutes a, the owner of, uh, of, of an adjacent or abutting 312
property within a hundred feet of a property in question has 313
a statutory right to appeal in a proceeding like this and so I 314
just need to establish the ownership of the property across 315
the street by my, my client, -- 316
Chairman MacNeil: Okay. 317
Atty. Chase: -- Mr. Chase. Um, would you come up here just for a 318
second? Uh, sir, I’m going to show you a couple of things 319
that I’m going to, uh, then, present to the Commission. Let 320
me ask you to take a look at this. And then, at this. And, 321
uh, what I’m holding are, uh, are, are two items. One is a, 322
one is a deed, um, uh, sir, is this the deed of the property, 323
uh, you own to you. Uh, you have to speak loudly. 324
Appellant Mr. Paul Chase: Yes, it is. 325
Atty. Chase: Thank you. And, uh, sir, I have a document, as well, that 326
says affidavit on top, uh, my question for you is, is this 327
your affidavit? 328
Appellant Mr. Chase: Yes, it is. 329
Atty. Chase: Thank you.… 330
I am, by the way, uh, I, I, thinking that, I, in most cases, uh, 331
am handing you a sufficient number of copies for everyone 332
to have one. If there are any extras, please simply dispose 333
of them. 334
The, um, continuing in the order of exhibit numbers, I 335
guess, uh, number four would, then, be the deed, uh, that’s 336
recorded at, uh, Volume 231, page 587 of the Montville 337
Land Records. And, I would point out an addition and ask, 338
uh, if this, whether or not this is already part of the record. 339
Perhaps, Mr. Carey or Mr. Sanders can be able to help 340
since there was an exhibit list (inaudible). 341
This is a map that was, evidently, submitted with the, um, 342
application for a zoning permit that’s in question here 343
tonight, uh, and, i- uh, I, my, my question is whether or not 344
this is part of the record already, uh, since there’s no 345
number assigned. I, you know, don’t want to do anything -346
- 347
Chairman MacNeil: Well, I’m not sure what record other than tonight has 348
already been established. 349
Atty. Chase: Okay, that, well, that’s, that’s fine. Uh, I, I’m going to do 350
this in a different way, then. I’m going to point out that, of 351
this large map, I’m going to present to the Commission an 352
easier to deal with, smaller version, um -- 353
Chairman MacNeil: Okay. 354
Atty. Chase: I’m going to explain that what I simply did was to take this 355
large map that I obtained from Mr. Sanders’ files and made 356
a photocopy at a reduced scale.…And, I’m going to take 357
the large map, as well, that it was copied from and submit 358
it, also. Uh, whatever you want to call the large map, um, 359
uh, four, uh, a and the -- 360
Chairman MacNeil: Right. 361
Atty. Chase: -- (inaudible) four-b, uh. 362
Chairman MacNeil: Right. Correct. Good Idea. 363
Atty. Chase: (inaudible) 364
Atty. Carey: I think we’re up to six. 365
Atty. Chase: Okay (inaudible). 366
Chairman MacNeil: Uh, uh, six. 367
Atty. Chase: (inaudible) 368
Attorney Harry Heller: (inaudible) it’s not a full photocopy. 369
Atty. Chase: Let me, le-, le, let me clarify because it’s a point well taken. 370
Why don’t we make the large map the exhibit and simply 371
identify the small copy as a (inaudible). 372
Atty. Heller: That’s fine. (inaudible) I mean, if it’s not on the record, 373
that should be… (inaudible). 374
Atty. Chase: Yes, I, I, I, I agree.… 375
So, the next exhibit number then will be a large map 376
obtained from Mr. Sanders’ files in connection with the 377
application and, the next item, uh, that (inaudible) from Mr. 378
Carey or not, but the next item, which is simply a 379
photocopy of a portion of that that distributed as an assist, 380
as an aid that can be given an exhibit number or not, as you 381
prefer. I just want to make it clear that it’s simply a copy 382
of a, uh, of, of the area of that large map -- 383
Chairman MacNeil: If it’s just used for reference, I mean, I think it’s -- 384
Atty. Chase: It’s just for reference. 385
Chairman MacNeil: -- it doesn’t need to be an exhibit, then, I guess. 386
Atty. Chase: Then, that’s, that’s fine as long as (inaudible) 387
Atty. Carey: I think we should mark it as an exhibit. 388
Chairman MacNeil: Okay. (laughing) 389
Atty. Carey: We’re not going to be -- 390
Chairman MacNeil: I’m corrected again. 391
Atty. Carey: We’re not going to make it like in court where we mark 392
them for ID or anything like that… 393
Atty. Chase: Exactly. 394
Atty. Carey: (inaudible) It’s, it’s been clarified that it’s only for 395
reference (inaudible) -- 396
Chairman MacNeil: And, somebody’s, somebody’s actually verified that this is 397
a copy of that. I mean I, I, I could go up there and look at 398
it. -- 399
Atty. Carey: (inaudible) 400
Atty. Chase: I can show you a large map -- 401
Chairman MacNeil: I mean, I’m assuming that we will at some point as we’re 402
pointing it out. 403
Atty. Chase: And, for purposes just at the moment, I’m going to point 404
out on the, on the small, assistive, uh, exhibit, uh, that the 405
area showing the property in question and the, uh, uh, in 406
other words, the area on the map that shows things like 407
boundary lines, and, uh, and, uh, 36 x 24 cape and septic 408
system and things like that, that that is bounded on Cherry 409
Lane on the upper right side of the map and across the 410
street is an area identified on the map, uh, as now or 411
formally of Paul E. and Joanne B. Chase. 412
And, the final of these three items introduced for, for the 413
purposes, or for reference for the purposes of establishing 414
aggrievement is an affidavit in which Paul E. Chase, uh, 415
states, among other things, that I am the owner of certain 416
real property that is situated in Montville, Connecticut, and 417
are fully described in Volume 231, 587 of the Montville 418
Land Records. My property is bounded easterly on Cherry 419
Lane and, as such, it abuts or lies within 100 feet of a small 420
parcel of land owned by Green Falls Associates, LLC, 421
situated on the opposite side of Cherry Lane and identified 422
as Assessor’s map lot 053-003. 423
And, on the basis of these last three, or, uh, rather, I guess, 424
four items, uh, submitted, uh, I sub-, uh, I, I submit to you 425
that, uh, the applicant, uh, the, the appellant, rather, has met 426
its burden in establishing aggrievement for purposes of 427
proceeding with this appeal.… 428
Atty. Carey: Mr. Chase, I’m, I’m sorry to interrupt your thought 429
(inaudible) we’re up to exhibit seven. Do you, I think you 430
mentioned you had other things you were going to give us? 431
Atty. Chase: Yes. 432
Atty. Carey: In connection to the aggrievement? 433
Atty. Chase: Um, I gave you a -- 434
Atty. Carey: (inaudible) 435
Atty. Chase: -- deed. 436
Atty. Carey: (inaudible) 437
Atty. Chase: I provided a deed, I provided a large map, … 438
Atty. Carey: Okay. 439
Atty. Chase: …a small portion of that map, and a handy reference sized, 440
and an affidavit… 441
Chairman MacNeil: Did you get the Affidavit? 442
Atty. Carey: I think we got the Affidavit (inaudible). 443
Atty. Chase: And, and, just, I, I, I, I believe I may have misspoken in, in, 444
in the sense of, of, of, uh, indicating to that I believe we’ve 445
met that burden. I want to, uh, actually provide you with 446
one other item, which, I think, crosses all the t’s and dots 447
all the i’s in this respect. This is a copy of, uh, Montville 448
Assessors’ street card that, identi-, it’s a two-sided 449
document and it identifies the property in question that is 450
the subject of this appeal tonight as map number 053 003. 451
Chairman MacNeil: Did your dad bring a photo ID? Just kidding. 452
Atty. Chase: With that document submitted, I believe that the record is 453
clear with respect to the issue of (inaudible). 454
Atty. Carey: (inaudible) this is an administrative procedure. (inaudible) 455
any of the copies that you gave us from the Town records, 456
are they certified copies? 457
Atty. Chase: Mr. Carey, there is no proceeding, or, rather, procedure I’m 458
aware of in the general statutes authorizing the certification 459
of a, of an assessors’ street card, as a, as a, uh, uh, as, as a 460
certified document. The Town Clerk, I do not believe, 461
under the general statues lacks authority to place her 462
certification on such a document. I’d be happy to provide 463
you with that, uh, statutory, uh, authority, uh, uh, -- 464
Atty. Carey: What about the deed -- 465
Atty. Chase: -- subsequently. 466
Atty. Carey: deeds (inaudible)? 467
Atty. Chase: It is an uncertified copy of a deed. However, in 468
conjunction with the other items, uh, in evidence including 469
the admission on the large map that this part of the 470
applicant’s materials for his zoning permit that Paul E. 471
Chase -- 472
Atty. Heller: If I may, a point of order? We are not the applicant here, 473
we are the, we’re the respondent. This is, this is their 474
appeal (inaudible). 475
Atty. Chase: Two, two, two, two, two points, maybe, three. The, whi-, 476
while it’s certainly true that the form that one uses to file an 477
appeal with this Commission states on it “Application for 478
Appeal”, it is quite clear that the statutory process that 479
we’re following here is an appeal. I do not need to, my 480
client does not to apply for permission to appeal to this 481
Commission. It is a statutory right. So, when I used the 482
word “applicant”, what I meant to say for clarity, uh, was 483
the applicant for the Zoning Permit in question or under 484
appeal here tonight. I believe I used that qualification in 485
connection with the word ‘applicant’ several moments, uh, 486
earlier. And, finally, and, this is for the record, uh, it is, uh, 487
not intended, uh, in any kind of a snide or snarky way 488
whatsoever, but unlike a proceeding, unlike an a-, an appeal 489
before you or a different commission where, uh, a third 490
party, if you will, has acquired the right to participate in the 491
proceedings by virtue of something like an intervention 492
petition or something like that. I would point out that, as 493
things stand just at the moment, that Mr. Gardner who, I 494
believe, is here with his attorney stands as a member of the 495
public, uh, who will have a right later on to raise any points 496
of criticism, comments, or objections that he wishes, but he 497
is not a party to this proceeding. 498
Chairman MacNeil: Okay. Continue. I, I mean -- 499
Atty. Carey: That’s Mr. Chase’s statement (inaudible) 500
Chairman MacNeil: Right, right, that’s fine. Okay. 501
Atty. Carey: You don’t have to agree with it, it’s a statement. 502
Chairman MacNeil: Alright. Carry on. 503
Atty. Chase: Moving on, moving on in the order, in the order of, uh, 504
progression to the next matter that I need to establish before 505
you, uh, that is the issue of the timeliness of this appeal. 506
Now, it’s actually, uh, um, uh, a matter of interest that, uh, 507
one of the last times that I was before this Commission, we 508
dealt with a somewhat similar issue in terms of the 509
timeliness of an appeal from the issuance of a zoning 510
permit. Now, as many of you are aware, most of you are 511
aware, I’m sure, a great many things, uh, by way of permits 512
or, uh, approvals, uh, that are done or made by the Planning 513
and Zoning Commission, the Wetlands Commission, and 514
so on, carry with them a requirement for publication and 515
from that publication in a newspaper, uh, one not only, uh, 516
counts, the, uh, the days, uh, for a possible appeal, but that 517
notice is deemed to be notice to all the world that an action 518
has been taken. It might also be that a person, uh, acquires 519
personal knowledge of something like a subdivision 520
approval or a, uh, wetlands, uh, approval by virtue of being 521
there, present in the proceedings that, you know, could be 522
argued. In the case of a Zoning Permit, there is no 523
requirement for the Zoning Enforcement Officer to publish 524
notice that he has issued, the, uh, the, uh, uh, uh, the permit 525
in, in question. And, nevertheless, the statutory right to 526
appeal from a decision or order or action of the Zoning 527
Enforcement Officer is, uh, uh, set at thirty days. That’s 528
been the statutory rule for, you know, for a very long time. 529
When I appeared before you several years ago, in a case 530
called Cockerham vs. Montville Zoning Appeals, or an 531
appeal that, you know, later became known as that 532
(inaudible) -- 533
Chairman MacNeil: Can you remind me of that one again? Just kidding. Go 534
ahead. 535
Atty. Chase: I, uh, we, we, we dealt with, we dealt with a similar issue. 536
And, just by the way of the background -- 537
Chairman MacNeil: I remember that. 538
Atty. Chase: Yes. There, there was a, there was a, a, a scenario wherein 539
a homeowner, uh, came home from work, what have you 540
from day to day and noticed initially, or no-, noticed earlier 541
that there was a for sale sign next door. Eventually, he 542
noticed that some trees were cut down, (inaudible) cut 543
down, or there were some surveyor’s stakes. And, 544
ultimately, when the case went to Judge Purtill, Judge 545
Purtill, uh, established in a, in a decision, uh, that, that 546
stands as law. Uh, it was not, uh, appealed. It’s, it’s a 547
different matter from the, uh, from, from the matter that is 548
now still proceeding in the courts under that same name. 549
And, Judge Purtill determined that in, i-, i-, in that case 550
that, that the sort of things that would cause one to know 551
that a zoning permit had been issued in the absence of 552
personal knowledge, in other words, personal notice, could 553
not be measured from events which could have a variety of 554
meanings or significances like the cutting down of trees or 555
even the placement of surveyor’s stakes or certainly not 556
even the placement or observation of a “for sale” sign. 557
However, what Mr. Cockerham did notice that there was an 558
excavator present and a large hole was being dug. He 559
should’ve known at that time that something was going on, 560
that something was going to be constructed that probably 561
required the issuance of some sort of a permit and that the 562
30 days should be measured from that time which the court 563
was able to establish based on information that was in the 564
record and held that Mr. Cockerham’s appeal within that 30 565
day time period from that reference point was, therefore, 566
timely. Now, I have a… 567
Chairman MacNeil: So, just to clarify, you’re saying, 30 days is the, is the State 568
statute. However, it can be changed, uh, based on a 569
circumstance, um -- 570
Atty. Chase: It’s 30 days from notice, and, where, where notice can’t be 571
measured in terms of -- 572
Chairman MacNeil: Okay, from notice-- 573
Atty. Chase: -- publication or where personal notice -- 574
Chairman MacNeil: Okay. 575
Atty. Chase: -- conceivably can’t be charged on the basis that someone 576
was in the room when a decision was made. That it’s 577
gotta’ be made, gotta’ be measured, instead -- 578
Chairman MacNeil: okay. 579
Atty. Chase: -- in this kind of circumstance from the occurrence of 580
something -- 581
Board Member Adams: Where common sense is met and from that day forward, 582
you move on. 583
Atty. Chase: I think that’s right. I think that’s right, Mr. Adams. What 584
Judge Purtill did clearly say, however, that it’s not the 585
placement of surveyor’s stakes, it’s not the cutting down of 586
trees, it’s not a “for sale” sign on the property as was urged 587
during that proceeding, um, but when construction is 588
beginning, uh, certainly, that is, uh, you know, that is, uh, 589
the time in which a reasonable person should be aware that 590
something’s actually happening, something’s being built. 591
Um, ordinarily, I could simply, uh, I suppose, just, uh, uh, 592
recite the docket number of that decision by Judge Purtill, 593
but I do have copies --. 594
Chairman MacNeil: We have copies in our warehouse. 595
Atty. Chase: That’s, that’s fine. Uh, I’m referring to, uh, the decision of 596
Judge Purtill on September 30th, 2009 in Charles 597
Cockerham vs. Town of Montville Zoning Board of 598
Appeals and the citation is 2009 Connecticut Superior 599
Lexus 2773.… 600
Board Member Lakowsky: [speaking in low voice] Is she our secretary? She is our 601
secretary? (inaudible) she usually sit up here?… 602
(inaudible background conversation) 603
Atty. Chase: Now, with all that said, -- 604
Chiarman MacNeil: [speaking in low voice] Right. That’s what he’s trying to 605
prove. 606
Atty. Chase: -- the affidavit that was submitted to you and has received 607
an exhibit number. Uh, unfortunately, I already lost track 608
as to which it is, uh, but it’s been submitted, uh, states, uh, 609
uh, uh, that, uh, this is Mr. Chase’s affidavit, “early in the 610
week of August 18th, 2013, , I first observed that site 611
clearing work was being done on Green Falls Associates, 612
LLC’s land, including the removal of large trees and 613
brush.” Now, I want to point out carefully, Judge Purtill 614
has said that, under the circumstances of the Cockerham 615
appeal, that the cutting of trees, the clearing of brush, that, 616
in and of itself, is not necessarily enough to inform an 617
ordinary person, uh, that, uh, that a zoning permit has been 618
issued, but, nevertheless, the next paragraph, that was 619
paragraph five of the affidavit, the next, uh, sta-, uh, I’m 620
sorry, that’s paragraph four, paragraph five states on 621
August 22nd, 2013, that’s about four days later, “following 622
inquiry by my attorney at the Montville Planning 623
Department, I learned that Zoning Permit number 212006 624
had been issued by the Zoning Enforcement Officer for the 625
Green Falls Associates, LLC’s land, uh, map 53, lot 3, 626
Cherry Lane, on February 6, 2012. I had no prior 627
knowledge of any such permit having been issued.” And 628
then, paragraph six, “on August 22nd, 2013, I signed an 629
‘Application for Appeal’,” that’s in quotes, “form to appeal 630
the issuance of the February 6, 2012 zoning permit. My 631
appeal was filed the next day and designated 2013ZBA2.” 632
So, the statements in this affidavit are that, following 633
observance of site clearing work, the cutting of trees, things 634
that under Judge Purtill’s decision were not necessarily 635
enough to demonstrate that a zoning per- or make one 636
aware that a zoning permit had been issued, that, 637
nevertheless, inquiry was made very soon after, within a 638
few days thereafter, and, following inquiry, following 639
knowledge that, in fact, a zoning permit had been issued by 640
Mr. Sanders that within a day or two after that, the appeal 641
that is before you tonight was filed. And so, I submit that 642
this appeal was timely since it’s been brought within the 643
requisite 30 days of knowledge of notice of the issuance of, 644
uh, of, of, of knowledge and notice by Mr. Paul Chase of 645
the issuance of the zoning permit by Mr. Sanders in 646
February 2012. I should also point out, now is just as good 647
as any, to say that there is a further paragraph, number 648
seven, on the affidavit that makes clear, because there is no 649
requirement that one who files an appeal to this 650
Commission do so, that on the same day that this appeal 651
was filed to the Commission, that notice was provided to 652
Mr. Peter Gardner, Manager of Greens (sic) Falls 653
Associates, by sending to two different addresses, one that 654
was on the zoning permit form and one that was the one 655
listed for his LLC at the Secretary of the State’s office by 656
sending a letter, certified returned receipt, informing him, 657
informing Green Falls LLC, through its manager, that this 658
appeal had been filed. And, I do have, uh, copies of that 659
notice that was provided.…And, in this case, I’ll be 660
handing an original with the original postal return receipt 661
signed by, uh, Mr. Gardner, uh, and addressed to him as 662
manager of Green Falls, LLC, and then, uh, copies, uh, to 663
the, uh, Commission members. 664
Board Member Adams: That would be an exhibit. 665
Chairman McNeil: Mm-hm. She’s got it. 666
Atty. Carey: Mr. Chairman, we’re marking these two pages as one 667
exhibit (inaudible) 668
Chairman MacNeil: Okay. This is going to be one exhibit because it’s bound 669
together. 670
Atty. Chase: Yeah, it, it seemed to make sense to staple it together since 671
they, uh, they’re, they’re, they’re simply to different 672
addresses that are explained in the affidavit. And, again, 673
there is no requirement, uh, under the, uh, appeals statute or 674
your regulations that this notice be provided to the permit 675
holder, but it was done and it was done very quickly, uh, 676
and, uh, so, uh, uh, that is that. 677
Because as you’ll see, then, the, uh, following paragraph of 678
the affidavit states that, despite the provision of this notice 679
to Green Falls Associates, uh, through its manager, that 680
activity at its property continued and, in fact, increased, 681
and, subsequently, uh, there was, e-, excavation, rock 682
removal, the construction of a foundation and, ultimately, 683
during the last month or so, the construction of a, of a 684
house on that property, um, and, uh -- 685
Atty. Carey: Mr. Chairman, (inaudible) the board may question the 686
applicant as to contents of the affidavit as the person is here 687
in the room. 688
Chairman MacNeil: We could ask the, uh, because he’s present, you’re talking 689
about the person who signed this affidavit, if we need, have 690
any questions for him, is that what you’re saying? 691
Atty. Carey: Yes, you may ask him questions. If you wish. 692
Atty. Chase: I mean, to be clear, M…Mr. Carey, my understanding 693
would be that the scope of any cross-examination would be 694
on the basis of the direct testimony, which, I believe, here 695
was, “this is my affidavit”. 696
Atty. Carey: Well, s-, no I don’t think so, I think it would be on the 697
contents of the affidavit otherwise (inaudible) question as 698
to whether the Board has to consider anything in the 699
affidavit, seems to me. 700
Atty. Chase: As you wish, as you wish, um -- 701
Atty. Carey: They have the opportunity to question. 702
Atty. Chase: They certainly, you know, i-, if, if they’d like to take the 703
opportunity now or subsequently, based on your comments, 704
that’s, uh -- 705
Chairman MacNeil: Nothing from me yet. 706
Board Member Adams: Proceed. Okay. 707
Atty. Chase: Thank you, thank you. Now, the issue of law that presents 708
itself tonight is, is, is actually going to be, uh, believe me, I 709
think you’ll find it to be anti-climactic, in a sense, but, in 710
other words, uh, the issue of law is, is very straightforward 711
and simple, um, but the background to it is going to take 712
just a bit of time and, I’ll proceed as quickly as I can, again, 713
on the basis of the submission of some documents. Several 714
of these are court decisions involving the prior history of 715
this property. Mr. Chairman, your point’s well taken that 716
you, the, uh, Commission’s offices here have volumes of 717
these things, um, if you do not wish to receive further ones 718
as exhibits, again, I’ll recite the name, the decision, the 719
docket number -- 720
Chairman MacNeil: I think that, um, you know, to try to get to the, to the reason 721
why we’re here tonight, I mean, all those documents, 722
honestly, if you need to, you know, if there’s something 723
specific, if you, if you give it to us and it’s, and it’s an 724
exhibit, I mean, we could review it later, but, I mean, rather 725
than keep us here for a long time, -- 726
Atty. Chase yeah, I mean, I -- 727
Chairman MacNeil: -- if you just want to give us a couple of minutes, hey, this 728
is what it’s all about, -- 729
Atty. Chase: yeah, -- 730
Chairman MacNeil: -- if we have questions, unless it, you know, if it’s really 731
going to -- 732
Atty. Chase: well, then that, -- 733
Chairman MacNeil: -- drive your point home. 734
Atty. Chase: -- then that’s what I’ll do. I will, I will, I, I, I only brought 735
these because I was going to refer to, in other words, 736
simply state that there was a court decision. 737
Chiarman MacNeil: Yes. 738
Atty. Chase: Uh, if I, I can describe it to you by the name of the parties 739
and the docket number and you believe that’s sufficient for 740
the record. 741
Chairman MacNeil: I think we can trust you to do it and, if there’s an error, I’m 742
sure, at some point, you’ll fix it or we’ll find it. But, I 743
mean, we wouldn’t, it would be hard for us follow along. 744
Board Member Adams: Yeah, I don’t think it’s going to benefit us. 745
Chairman MacNeil: Yeah. 746
Atty. Chase: Well, I, you know, and, and, I, I can say, it’s not my 747
purpose to discuss with you the contents of these decisions, 748
again, simply to say, they were made. Um, so, uh, and, 749
perhaps, I’ll, I’ll do this by way of a, in sort of a timeline, 750
uh, so that you can kinda’, just kinda’ keep track of where 751
things, uh, have been, uh, here. In any event, um, there, 752
there, there had been as, as, we referred to earlier, uh, and, 753
uh, and there were some minutes submitted. You see there 754
was a, there was a purpose in having submitted that. There 755
was a public hearing for this body, uh, on July 12th, 2007 756
concerning a variance application by Greens Falls or, or 757
Green Falls Associates, LLC. That was two-thousand, or 758
207 ZBA 8, and, again, a copy of the minutes is already, 759
uh, or have been submitted. Um, on September 5th, 2007, 760
that variance application was denied by the Zoning Board 761
of Appeals, by this body. And that fact, I, I suppose is 762
something that, you know, is contained in a, uh, a 763
subsequent document, uh, that I’ll reference in a court 764
decision. Um, on October 1st, 2007, Greens (sic) Falls 765
Associates, LLC, brought litigation against this Board to 766
appeal the denial of its variance application back in earlier 767
that, uh, summer or that year. And, on October 28th, 2010, 768
the New London Superior Court dismissed Greens Falls or 769
Green Falls, LLC’s appeal, that’s upholding this Board’s 770
decision and that decision and the procedural facts I just 771
referenced are all apparent, uh, in the, uh, decision in Green 772
Falls Associates, LLC vs. Montville Zoning Board of 773
Appeals, uh, docket number, um, uh, it’s reported, uh, as 774
number, uh, 2010 Connecticut Superior Lexus 2771, 775
October 28th, 2010. Greens (sic) Falls naturally, uh, 776
appealed, I would have done the same thing, uh, uh, 777
appealed the, uh, appealed the decision or sought to appeal 778
the decision, uh, of the Superior Court, uh, to the Appellate 779
Court. Under the procedures that apply, you must seek 780
permission to do so, it did, it was granted such permission 781
and appealed, uh, in the Appellate Court, appealed the, uh, 782
if you will, the upholding by the New London Superior 783
Court of, of your, uh, decision. Uh, that decision of the 784
Appellate Court, uh, which is reported, uh, at 138 785
Connecticut Appellate 481, uh, on, uh, October 16th, uh, 786
2012. Again, as I said, uh, um, uh, upheld the, uh, decision 787
of the New London Superior Court. Here’s where it gets 788
interesting. That decision, as I said, was released on 789
October 16th, 2012. Matter of fact,…and this I will submit 790
copies of… 791
Atty. Carey: Mr. Chase, did you give me two of the same thing? 792
Atty. Chase: I, I might’ve. If, if you have an extra one, you can simply 793
dispose of it, but it’s not, uh, it’s only intended to be one 794
document stating the other, and, this is simply, uh, the, uh, 795
the, uh, print-off that one may make from the Connecticut 796
Judicial Branch website in, in any, uh, court decision 797
pending or decided, uh, setting forth the various dates when 798
things have been filed and, uh, and done. Now, as I 799
indicated to you, this appeal was pending in the Appellate 800
Court, um, I recall it well, I was, I was up there for the 801
argument, uh, with, with Mr. Heller and with Mr. Carey, 802
uh, but, in any event, before that took place, before that 803
argument and decision were made, you’ll, uh, note on the 804
second page that, uh, that Green Falls Associates had filed 805
its brief to the Appellate Court in August of 2011. In fact, 806
the Town’s brief or rather this, this Commission’s brief, uh, 807
that, uh, Mr. Carey, uh, uh, eventually filed was not due 808
until, uh, January 17th, 2012 and then, as you’ll see on the 809
first page, the argument didn’t take place until a 810
considerable time later and the decision until much later 811
than that, uh, in, um, in October 2012 as we’ve, uh, just, uh, 812
stated. The interesting thing, however, is that, on 813
November 29th, 2011, it was just after Greens (sic) Falls 814
had filed its brief in the Appellate Court before the, before 815
this Commission had even responded, before Mr. Carey’s 816
brief had even been filed, before the Appellate Court had 817
even looked at the situation, there was a meeting of the 818
Planning and Zoning Commission, uh, it was a Special 819
Meeting. I’m assuming it was held in this room. A variety 820
of things were on its agenda. And, I’ll give you these 821
copies so you can follow along.…The relevant part, you’ll 822
see, that among the matters for, uh, uh, for the public 823
hearings that night at item six, were, uh, revisions to the 824
Town of Montville Zoning Regulations. This was an 825
application by the Planning and Zoning Commission, itself. 826
From time to time, periodically, it updates or changes its, 827
its own regulations. You’ll see among them, there’s a 828
whole variety of things they addressed, but among them, 829
uh, were, uh, on about the third line of item 6B, 4.13.6, 830
that’s a reference to a section of the Montville Zoning 831
Regulations. “Delete the word frontage and add the words 832
lot width, revise lot width and add new lot widths 76 to 85 833
feet and 86 to 95 feet.” Well, that doesn’t tell us a whole 834
lot, but the, um, the minutes tell us a little bit more of the 835
Planning and Zoning Commission’s doings that night. 836
Here is a copy of those minutes.…In the, on the first page, 837
down near the bottom, the same, uh, thing that I referred to, 838
uh, is, uh, is set forth, uh, there is a, then, on the second 839
page, a whole variety of exhibits and notices that were 840
submitted by the Commission staff, there was 841
discussion…and on page three, um, and it’s apparent that 842
there were a variety of other changes made that night to the 843
Zoning Regulations, most of which appear to have been 844
done to bring the Regulations into compliance with some 845
recent statutory changes in Hartford that, uh, had to do with 846
bonding requirements for subdivisions and so forth that the 847
Town needed to comply with and those were, uh, were, 848
were apparently presented, uh, or discussed with the 849
Commission by Attorney, uh, Ron Ochsner, uh, there was 850
discussion held, I’m on page three, about two inches, uh, 851
down, um, and then we got to the, we get to the part 852
regarding this lot width change for non-conforming lots. It 853
says, “Discussion was held. Staff, with assistance from 854
Attorney Harry Heller explained the proposed changes 855
regarding lot width on l-, on non-conforming lots” and then 856
there’s some discussion of exhibits, the minutes reflect that 857
the public hearing was closed and then, eventually, much 858
later on in the minutes, that all of those changes were 859
approved. This got my interest. The next is a, well, we’ll 860
call it a kind of a two-part exhibit, or however Mr. Carey 861
thinks that we should best mark this, the, the first item of 862
which there’s only one copy of, but it should suffice, is the 863
audio recording of that November 29th, uh, Public Hearing 864
and Meeting of the Planning and Zoning Commission and 865
from that, I’ve had a transcript prepared.…I had prepared a 866
marked up, uh, version, and so, I will do my best in the 867
absence of, uh, of it, to quickly bring some things to your 868
attention, uh, if anyone has a version with a yellow 869
highlighter on it, please let me know, since that was the one 870
I was going to use…must still be on my desk at work. In 871
any case, you’ll notice that the first part of the public 872
hearing that night after the roll call, pledge of allegiance, 873
and so forth, dealt, and now I’m roughly on page two, with 874
the changes to the Montville Zoning Regulations based on 875
Public Act 1179, which the Town Planner, Marcia Vlaun 876
discusses, uh, the, the effect of, uh, and the reason why 877
changes need to be made, needed to be made, uh, to the 878
Town’s regulations to comply with the, uh, statutory 879
enactment. And, then, on page three, Attorney Ochsner 880
introduces himself, uh, he was there to explain, uh, the need 881
for those changes to the Commission. And on li-, page 882
three, line 72, Attorney Ochsner finishes his presentation, 883
so the Chairman, then, confirms, that, uh, we’re now, uh, 884
on, what he called, Phase Two of Zoning, um, uh, Ms. 885
Vlaun, uh, indicates on, uh, line 80, that, uh, in fact this is 886
the discussion of 4.13.6, part of the Zoning Regulations. 887
On the next page, she, she describes what she sees, in any 888
event, as the purpose of the, uh, of the changes, um, uh, that 889
were, that were being, uh, made, uh, she, she states, uh, 890
around line 99, uh, “they”, meaning, meaning affected 891
property owners, “may have a very large lot, but they’re 892
limited in terms of frontage under the regulations”, uh, and 893
generally seems to be explaining that there are some people 894
in some zones who don’t benefit or did not, at that time, 895
benefit from the provisions of 4.13.6, which we’ll, uh, talk 896
about in just a moment. Uh, unfortunately, she was, seems 897
to be having a hard time with the Planning and Zoning 898
Commission members who didn’t seem to know what she 899
was talking about or where this change was coming from. 900
Somebody says on line 110, “Marcia, I’m just completely 901
lost, I’m not getting this”, um, uh, 122, “I don’t see this, I 902
don’t see that at all”, um, someone says, “where’s the 903
yellow line?” Line 125 on page five, “I don’t get your 904
question”, that’s Ms. Vlaun. Line 126, Commissioner, uh, 905
uh, Unknown, uh, Name, stating, “I don’t get what you’re 906
telling me”, um, line 127, Attorney Heller, “Marcia can I 907
help?” Line 128, Marcia Vlaun, “Absolutely.” Line 129, 908
Attorney Heller, “I understand the question.” Line 130, 909
Marcia Vlaun, “My interpreter”, and then Attorney Heller, 910
at line 133, uh, describes, uh, what it is that the 911
Commission members, who had apparently never seen it 912
before, were going to be doing that night. And he talks, 913
however, uh, and, it’s a pretty good explanation, I think, uh, 914
uh, giving due credit, uh, uh, as to the effect of 4.13.6, 915
which, until that time, applied to in the smaller zones in the 916
town the R40, R80, and so on. The proposal that night was 917
to extend it to the WRP160 where this parcel is located, uh, 918
the parcel in question, and also, I think, the open space 919
zone. And, there was discussion about the background of 920
the existing regulation, uh, concerning lots that typically 921
had very small amounts of frontage, uh, and, again, uh, 922
general discussion, uh, which you can, you know, certainly 923
read for yourself, uh, about what it is that was, uh, trying, 924
uh, or sought to be accomplished, uh, there that night, uh, 925
by the, uh, Commission. Um, eventually, after this was 926
described, uh, the, the, the, this, this purpose to, to benefit 927
the, uh, lots that, uh, that had, let’s say, less than required 928
amount of frontage, albeit very large area, in excess of the, 929
uh, requirements, uh, this was the gist of the discussion. 930
Eventually, i-, i-, it seems that the Commission, uh, began 931
to understand, uh, better, uh, but, but, Commission Varin 932
on page seven, line 217 says, “Okay, now I understand you, 933
we’re just talking about a small amount of lots. Wouldn’t 934
that just be a bona fide hard ship under the ZBA?” Town 935
Planner Vla-, Vlaun says, “No, no, because the Zoning 936
Board of Appeals is just like this Commission. I don’t 937
think that a person”, then she pauses and says, “not just like 938
this Commission, let me take that back. I don’t think that a 939
person should have to spend the money for an appeal and 940
put their future property rights in the hands of the Zoning 941
Board of Appeals. Why should we force one class of 942
property owners to do something when we’re not forcing 943
another class of property owners to do so.” Attorney Heller 944
explained a bit further on line 228, “let me address it a 945
different way, what we’re trying to do…” and that’s where 946
I pause, because I say to myself, “Who’s we?” This was 947
the Planning and Zoning Commission’s application to 948
amend its regulations. As far as I know, Attorney Heller 949
was not representing the Planning and Zoning Commission, 950
nor is he a member of its staff, but says, “What we’re trying 951
to do here with this change…” And this, by the way, is a 952
change that affected, admittedly, by the testimony in this 953
transcript, a very small number of lots, but, crucially, this 954
one. Attorney Heller, uh, actually gave an illustration, uh, 955
he says on page eight, uh, right at the top, he addresses, uh, 956
by way of example, a lot on Forsyth Road and I should 957
point out that the minutes, themselves, that list all of the 958
exhibits before the Planning and Zoning Commission that 959
night speak of several, um, maps, uh, or, or, plans, 960
apparently showing several lots that were selected as 961
examples of what the Commission was trying to do. And 962
so the Forsyth Road lot is identified in those minutes you 963
received earlier as number 117 Forsyth Road and, so, I 964
printed out a copy of the Assessor’s street card, actually, 965
this isn’t the street card, this is just what you get online 966
from your own computer when you go to the Vision 967
appraisal website to identify the property and, also, uh, 968
made a, uh, uh, a copy of, uh, of a map of the, um, uh, from 969
the, uh, assessor’s, uh, records, uh, showing its 970
configuration for informational purposes. Attorney Heller 971
who had said, “this is what we’re trying to do”, uh, used 972
this as an example and I, I can see this from the discussion 973
of, of, Planner Vlaun and the discussion of Attorney Heller 974
that night, there was discussion of what do you do with 975
lots, pre-existing, non-conforming lots that have very small 976
frontage and yet plenty of area. 117 Forsyth Road, the 977
example, is right in the middle of the map, it’s lot 2M, uh, 978
we know this because the street card or, rather, the Vision 979
appraisal page indicates this as being a 1.16 acre lot, uh, 980
and the discussion indicates that its being triangular and 981
having sub-standard frontage, but certainly more than 982
enough area, and, as you can see on the map, there’s a, 983
there’s a lot shown that seems pretty clearly to fulfill those 984
criteria. Say, um, this is a lot that’s located, according to 985
the Vision appraisal card, in the R40 zone, which under 986
your Regulations, or, rather, the Zoning Regulations 987
requires 150’ of frontage, I believe, the lot shown here has 988
only 46’ plus or minus, the lot itself is in excess of the 989
requirements, the acreage requirements, the square footage 990
requirements of the zone. I looked further because the 991
minutes identified some other parcels that were put before 992
the Commission as examples, albeit, uh, not, uh, discussed, 993
one of them was 649 Route 82, this is shown in the 994
minutes, uh, also, or indicated in the minutes, uh, also, so -- 995
Chairman MacNeil: Does this have a direct bearing on why we’re here tonight? 996
Atty. Chase: Yes, it does. It certainly does. 997
Same routine here and I would point out only that even 998
though this wasn’t even discussed by the Town Planner or 999
Mr. Heller, that this was another one of the exhibits that 1000
was provided by the staff, according to the minutes that 1001
night, to show what they, as opposed to, perhaps, the 1002
Commission were, were trying to do. Here, the lot in 1003
question, um, 649 Route 82, according to the Vision 1004
appraisal page, is a .27 acre lot in the R120 zone and many 1005
of you can recognize it. It’s a property that’s located on 1006
Route 82, but the address is actually Church Road. It’s the 1007
property at the corner, the former church, uh, at Route 82 1008
and Church Road. On the map, you can see the location. 1009
Here we have just the opposite situation. Here we have a 1010
lot that clearly, at .27 acre, doesn’t meet the area 1011
requirements of the R120 zone, uh, however, the, um, uh, 1012
the frontage on Church Road is, is considerable. It’s 1013
actually in excess substantially of the, uh, of the 200 feet, 1014
uh, required. So, here you have the opposite situation. 1015
Here you have a pre-existing, non-conforming lot with not 1016
enough, uh, area, uh, to comply with the regulations, but, 1017
it’s pre-existing, uh, and plenty of frontage. The other 1018
example earlier was, was just the opposite, plenty of area, 1019
not enough frontage. The minutes talk about another, um, 1020
lot or parcel that was, that was an example, uh, 3 Old 1021
Colchester Road, but I can, I can certainly point out that 1022
the, the minutes and the tape recording, or the recording, if 1023
you care to listen, will show that the Commission never 1024
discussed that other parcel, 3 Old Colchester Road. I, 1025
myself, devoted a fair amount of time to try and locate a 3 1026
Old Colchester Road. I couldn’t find one, uh, in existence 1027
in the Town. In fact, Old Colchester Road down at the 1028
Waterford line begins at two-hundred and something. 1029
Now, this, then, gets to the regulations and, not sure if any 1030
of you have with you your copies of the regulations tonight, 1031
uh, I brought mine, but what I did, as well, was to print 1032
some excerpts, in other words, pages, I didn’t change the 1033
content of the pages, but I printed about six pages of the 1034
regulations to make it easy to follow along. 1035
Atty. Carey: Mr. Chairman (inaudible) 1036
Chairman MacNeil: Take a five-minute, uh, break… 1037
Atty. Carey: Thank you. Thank you, Mr. Chase. 1038
Atty. Chase: You’re welcome. 1039
Chairman MacNeil: Okay we’re, uh, back in session. Continue Mr. Chase. 1040
Board Member Adams: A-, at 8:20. 1041
Chairman MacNeil: 8:20. 1042
Atty. Chase: Thanks. As a, as a brief point of clarity, for the record, uh, 1043
the docket number that I provided earlier for the Charles 1044
Cockerham decision on the issue of timeliness may have 1045
been incorrect, but in as much as you, as you said, Mr. 1046
Chairman, you’ve got -- 1047
Chairman MacNeil: We recall it. 1048
Atty. Chase: -- multi-, multiple copies and recall the situation, uh, I 1049
think, if need be, uh, if the Commission wishes, I, I could 1050
certainly supplement later the correct docket number, but if 1051
not -- 1052
Chairman MacNeil: We’re good. 1053
Atty. Chase: Fine, thank you. Um, okay, so I, what I, what I handed to 1054
you before the break were, uh, pages, uh, six or seven 1055
extracts, if you will, uh, from your Zoning Regulations, uh, 1056
uh, if one wanted to follow along in the actual, uh, 1057
complete, thick version, one could. I wanted to bring to 1058
your attention through these excerpts, uh, the following 1059
sections that are going to be relevant to your decision 1060
tonight, once I lay the, uh, uh, the issue before you. First, 1061
would be Section 1.2, the general interpretation provisions 1062
of the Regulations, uh, the, the instruction, uh, as to how 1063
certain words are to be interpreted and there’s, there might 1064
be ten or a dozen words that are specified, uh, uh, to have 1065
specific, um, uh, meanings, uh, there, uh, unlike, uh, in 1066
other words, for purposes of these regulations only. Um, 1067
uh, the next page, which is a copy of page eight of the 1068
regulations, uh, contains several, um, uh, provisions, 1069
including, um, uh, lot line, side, lot width, um, and lot non-1070
conforming. The next page, oh, um, the next page, we’ll 1071
get back to. The, um, the next page beyond that, line 23, 1072
Section 4.12, Interpretation of Regulations and, again, I 1073
would submit to you that the text of that provision is going 1074
to be relevant to your decision that you make on this appeal 1075
and that, uh, to the, uh, to the, uh, to the extent that it 1076
constrains to your decision, uh, there it is, uh, before you. 1077
The next page is page 24 of the Regulations and it contains 1078
the Regulation question that had been amended in the 1079
manner described when I showed you that, uh, that 1080
transcript and provided a recording. Um, what this, uh, 1081
says, uh, what it, what it does, yo-, yo-, you’ll see several 1082
portions of it. There’s a table, uh, of what amounts to a 1083
reduced or relaxed, uh, uh, maximum, or, I’m sorry, 1084
minimum side-yard width, in other words, setback 1085
requirement, where the lot width itself is of certain sizes 1086
and you’ll see that there was an amendment, effective 1087
12/15/11, that’s the one we discussed. And, so the text of 1088
this Regulation, um, really, in conjunction with that table, 1089
is that which is set forth, uh, right at the beginning, where, 1090
where, where the word “lots” appears. And, uh, I’ll, I’ll 1091
just read this for you and I will point out that the effect of 1092
that regulation seems to, that change, back in 2011 seems to 1093
be that this Regulation 4.1316 (sic), this relaxed standard 1094
under certain circumstances, now, apparently, applies to all 1095
of the zones in Town where previously it only applied to 1096
only some of the smaller sized, uh, zones. And the text 1097
says, “lots for single-family detached residences, which 1098
meet the definition of non-conforming lot in Section 1099
4.13.5,” that’s just earlier, and, you know, I’ll certainly 1100
stipulate that this is a non-conforming lot. The Appellate 1101
Court discussed that extensively. Um, “such lots which 1102
have a total area less than the minimum required in the 1103
District or a lot width which is less than the minimum lot 1104
frontage required in the District may be used for single-1105
family detached residences provided such lot shall conform 1106
to use regulations and all other applicable setback 1107
requirements in the table,” I’m sorry, “of the District or the 1108
table which follows.” And, you-, you’ll note that there was 1109
something that was discussed at great length at the public 1110
hearing of the Planning and Zoning Commission, that is to 1111
say that the lot width, um, is, is, is measured, um, uh, how 1112
did that, uh, sentence go again, less than the, uh, I’m sorry, 1113
have a, uh, uh, a lot width which is less than the minimum 1114
lot frontage required in the District. Lot width is not the 1115
same as frontage but you’ll see it’s defined in that earlier 1116
section, um, it’s to be measured at a certain point in the lot, 1117
uh, in other words, back into the lot, because some lots, 1118
let’s face it, are triangular in section. In fact, um, uh, one 1119
of the, uh, examples or two of the examples used and this 1120
lot here, as well, is of a roughly triangular shape. The large 1121
drawing that’s shown, um, I can’t recall if it actually, uh, 1122
designates an area where the lot width is to be measured, 1123
but the, I will, again, stipulate that the lot width, um, uh, as 1124
measured on that map, uh, falls within, uh, or, uh, or 1125
addresses, the uh, um, uh, the, uh, the, the definitional 1126
requirement there set forth in, uh, 4.13, uh, 16. However, 1127
and here we are. And, I said the background was going to 1128
take a long time, but the issues were quite simple. I looked 1129
long and hard at that Regulation as amended and I thought 1130
about the two examples that were before the Planning and 1131
Zoning Commission that night and, really, none of the 1132
members spoke, none of them said “this is what we are 1133
setting out to do here.” The Town Planner told them, in 1134
effect, what they were going to be doing, Mr. Heller had 1135
some comments, but the members of that legislative body, 1136
where they were sitting that night, in their legislative or 1137
rule-making capacity were silent, really, as to what they 1138
were attempting to accomplish or even why they were 1139
doing it. What, what they said, uh, is, uh, is that this 1140
language now applies, you know, in all the Districts. And, 1141
again, if you look at it, lots, non-conforming lots, which 1142
have a total area less than the minimum required in the 1143
District, or, or, a lot width which is less than the minimum 1144
lot frontage required in the District may be used for single-1145
family detached residences provided they meet the 1146
requirements stated and comply with the table. I focused as 1147
you can tell from my emphasis on the meaning of that 1148
word, ‘or’. It’s not defined in the Regulations, nothing in 1149
the general interpretation, uh, section of the Regulations 1150
states that it’s to have a particular, special meaning in these 1151
regulations, nothing in the enactment of the legislative 1152
body that night said it was to have a particular, special 1153
meaning like ‘and/or’, or ‘and’ because you’ll see here, on 1154
your little reference copy of the, uh, of the large map, uh, 1155
and as you can see by reference to the requirements for the 1156
WRP, uh, 160 Zone that are set forth in the Regulations, 1157
this lot has a couple of things, uh, worth noting. You don’t 1158
have this in front of you, but it’s in the Regulations, itself, 1159
the area requirements and the frontage requirements for the 1160
WRP160 District where this, where the lot in question is 1161
located. And, this is it. Section 5.4 of the Zoning 1162
Regulations, it states that the minimum lot size in this 1163
district is 160,000 square feet. Now we know that this lot’s 1164
a lot smaller. It’s pre-existing, non-conforming. It’s about, 1165
I think, if I’m not mistaken, .11 acre or something like that. 1166
But it’s a lot smaller than 160,000 square feet. I don’t think 1167
there’s any question of that, um, the, um, again, the, uh, the 1168
prior decisions of courts, including the Appellate Court, 1169
make, make quite clear, uh, and, uh, what, what the area is 1170
as does also things like the assessor’s, uh, street card which 1171
you, uh, have, uh, in, in evidence. To the extent that it’s 1172
not, uh, perfectly clear on the ma-, on the large map, itself. 1173
Section 5.5 says that each lot in this District shall have at 1174
least 200’ of frontage on the street. And as you can see this 1175
lot is non-conforming in that respect as well, the map 1176
shows 100’. So, this lot has two problems with regard to 1177
conformity with the regulations. Again, it’s, it’s non-1178
conforming, it’s pre-existing, we know that, but it has less 1179
than the requisite frontage and less that the requisite area. 1180
For purposes of the relaxed setbacks, siding-, side-yard 1181
setbacks, uh, that the, uh, that the permit holder has, has 1182
relied on in the design of his, in the layout of his lot and, 1183
ultimately, placement of his foundation and so on. Those, 1184
those relaxed setback requirements under the plain 1185
language of that Regulation are applicable only where the, 1186
one of the, uh, circumstances or the other are demonstrated 1187
and I point out further, uh, or you can simply take my word 1188
for it, that normally, the front yard, side-yard, and rear-yard 1189
setbacks in the, uh, in the, in the, um, in the WRP160 1190
District are, are, respectively, as follows: 75 feet in the 1191
front, 30 feet for each side-yard, and 75 feet in the rear. 1192
You can do the scaling, accordingly, on the map and you 1193
can see that the relaxed standards of 4.13.6 are what has 1194
been relied on here instead. Now, I’m not asking you to 1195
take my word for it on the meaning of ‘or’ even though it’s 1196
pretty common sense and there is no contrary, uh, 1197
definition, uh, or, or special definition set forth in the 1198
Regulations. What I’m going to ask you to do instead is to 1199
take the Connecticut Supreme Court’s word for it. I love 1200
this phrase, the, the word ‘or’, uh, and this ap-, a-, a-, 1201
appears in several decisions is a, is a “disjunctive 1202
conjunction”. I thought that that was a, a wonderful 1203
description. And, uh, the question is, what does that mean? 1204
Well, the Supreme Court of Connecticut in the Case of 1205
State vs. Angell, that’s, A-N-G-E-L-L, uh, 237 Connecticut 1206
321, a 1996 decision and I will, uh, state, and Mr. C-, Carey 1207
and I may discuss this at some point in the future, these, 1208
these decisions are about a variety of different things. 1209
What they have in common, however, is the, the 1210
interpretation of statutory or legislative language, 1211
particularly the word ‘or’. So, they’re not zoning cases per 1212
se. But that’s not the point. The question is the proper 1213
interpretation of legislative language. What the Supreme 1214
Court said in Angell, uh, is this. Section 852, that was 1215
some legislative, uh, language in question is in the 1216
disjunctive rather than the conjunctive. Although we have, 1217
on occasion, construed the word ‘or’ to mean ‘and’, and it 1218
provides some citations to earlier decisions, we do so only 1219
when, quote, “such construction clearly appears to have 1220
been the drafter’s intent.” The reference there was to, uh, 1221
another case, State, oh, I’m sorry, Di’Occhio vs. 1222
Connecticut Real Estate Commission. And, that decision 1223
which goes back to the early 1980s, again, interpreting 1224
legislative language, the Connecticut Supreme Court said, 1225
“the Commission”, this was the Connecticut Real Estate 1226
Commission. The Supreme Court says, “the Commission 1227
seizes on the phrase, quote, “intervene in or defend”, end 1228
quote, as affording it a choice of intervening independently 1229
or on behalf of the agent. The disjunctive ‘or’ can be 1230
construed as ‘and’ where such construction clearly appears 1231
to have been the legislative intent.” And the Court, again, 1232
cites some further decisions there. And, finally, the most 1233
recent decision I could find, uh, this was the, uh, case of 1234
Stew Leonard’s vs. Board Member of Revenue Services. 1235
This is kind of a well-known, uh, decision regarding tax 1236
evasion, uh, I think. Um, the, uh, the Supreme Court says, 1237
there, um, citing, in fact, State vs. Angell, the first of the 1238
decisions that I, uh, uh, quoted for you that, um, “it is clear, 1239
however, that, by listing these two exceptions in the 1240
disjunctive, the legislature did not intend for the declarant 1241
to have to prove fraud in order to toll the limitations 1242
period.” et cetera, et cetera, um, “absent any indication that 1243
one is subordinate to the other or that one is meant to define 1244
the other, such phrase must be given equal weight as an 1245
independent limitation”, citation to State vs. Angell, 1246
“although we have, on occasion, construed ‘or’ to mean 1247
‘and’, we do so only when such construction clearly 1248
appears to have been the drafter’s intent.” If at some point 1249
in the future, uh, Mr., uh, Carey, uh, wants the exact page 1250
reference for that, I’m glad to provide it, he can all me at 1251
the office, if he, uh, if he needs to. Um, so, the Supreme 1252
Court’s been, been quite clear in a, in a whole variety of 1253
types of cases that have in common the question of 1254
interpreting legislative language, be it from the State 1255
Legislature or some other body, that the, that the word ‘or’ 1256
means ‘or’, it doesn’t mean ‘and’, and it doesn’t mean 1257
‘and/or’. Um, here, we can see that, at one level of 1258
interpretation, the legislative intent of the Planning and 1259
Zoning Commission is silent. They didn’t say anything. 1260
They said, “we don’t understand what you’re asking us to 1261
do, Marcia,” and then they said, “okay, approved”. That’s 1262
really about, about all we have in terms of legislative intent 1263
here. We also have Attorney Heller, uh, telling the 1264
Commission, uh, that night, “what we’re trying to do”, but, 1265
again, with all due respect, I think we all understand that 1266
he’s not a Commission member, uh, he’s not its legal 1267
representative, he’s not a member of the Commission staff, 1268
so I don’t know who “we” is, but he’s certainly not 1269
speaking on behalf of the Commission that night when he 1270
addressed his idea of what that, uh, uh, legislative, or what, 1271
what that, that, that amendment, that amended, uh, 1272
regulation was out to accomplish. Again, he, himself, cited 1273
to one of the examples, uh, uh, one of the lots that have 1274
been set forth by the Commission staff as, as noted in the 1275
minutes, as an example of a type of lot that they were 1276
trying to deal with with this legislative, uh, with this 1277
regulatory change. It was a lot that did not have enough 1278
frontage for the District, but had plenty of area. The other 1279
example that was not even spoken of, but, again in the 1280
minutes is held out as an example of another thing, another 1281
kind of lot the regulation was trying to address, was a lot 1282
that had plenty of frontage, but not enough area, both being 1283
non-conforming lots. No question that these are non-1284
conforming lots, no question that they can be used to 1285
whatever extent the regulations provide. But, the relaxed 1286
rule, uh, the, uh, I think I said 4., uh, 4.13.6 rule applies to 1287
lots that display either characteristic, not both. That’s what 1288
the language says, we know it says that because the 1289
Planning and Zoning Commission said nothing otherwise 1290
and the Supreme Court informs us that where they have 1291
said nothing otherwise, where the legislative body has said 1292
nothing otherwise, ‘or’ means ‘or’, it doesn’t mean ‘and’, it 1293
doesn’t mean ‘and/or’. And, as you can see, the le-, the, 1294
the legislative body, here the Planning and Zoning 1295
Commission, uh, did not either provide any special 1296
guidance for general interpretation rules at the very 1297
beginning of that excerpt that I gave you as to any, any 1298
contrary, any contrary intention to define the word ‘or’, 1299
other than the meaning that the Supreme Court has said has 1300
to apply. Now, I’ve been before you before, I’ve, I’ve dealt 1301
with, uh, uh, uh, appeals from your decisions before, along 1302
with Attorney Carey, we’ve briefed opposite sides and one 1303
of the uh, uh, issues that we dealt with, recently, was 1304
whether the decision of a Superior Court, something like 1305
the New London Superior Court, has any binding authority 1306
on this Commission. We have a difference of opinion, um, 1307
we’re now seeing if the Supreme Court’s going to take up 1308
that issue. What is beyond dispute, beyond not only 1309
beyond reasonable dispute, but beyond even legal dispute is 1310
the obligation of this Commission, like any other 1311
Commission to follow the authority of the Appellate Courts 1312
of this State, where Commission, where, where, where 1313
decisions have, uh, have, have had the benefit of review by 1314
the Appellate Court or Supreme Court Justices and have 1315
been determined to be, in effect, the law of the land, at least 1316
as far as Connecticut, uh, goes. And, so, really, that’s, 1317
that’s it. I told you that the issue itself is pretty 1318
straightforward, not saying that I envy being in your shoes 1319
to decide it, but nevertheless, uh, that’s what the authorities 1320
hold, that’s what the Regulation says and what went into it, 1321
the Commission’s own comments that night, the Planning 1322
and Zoning Commission’s comments that night were all 1323
laid out. You don’t have to take the transcript’s word for it, 1324
so to speak, although I would point out that there is a (sic) 1325
affidavit appended to that transcript from the 1326
transcriptionist in the ordinary format indicating that, uh, 1327
that it is a true and accurate transcription. Listen to the 1328
recording, if you want. They said what they said, which 1329
was really nothing. And, again, furthermore, even if you 1330
could attribute to them by some mechanism that I’m 1331
unfamiliar with. You could attribute a legislative intent to 1332
voting yes to something the Town Planner says or someone 1333
says, “here is what we’re going to do here tonight”, 1334
someone who is not a Commission member. Even so, the 1335
examples given only reinforce there was an example of one 1336
scenario, there was an example of the other scenario and 1337
that’s what we have here. 1338
There’s, um, just about done, a couple of quick things, uh, 1339
just to…this is not a situation where, and, let me speak very 1340
carefully and clearly. You’re sitting here tonight as an 1341
appellate body. You’re not sitting in your capacity where 1342
you grant variances or being a-, or being asked to grant a 1343
variance, in effect, to bend the rules, to relax the rules upon 1344
the showing of a hardship, good cause shown, if you will. 1345
When you sit as an, as an appellate body, uh, in reviewing 1346
the decisions of the Zoning Enforcement, uh, Officer, the 1347
zoning official, um, you are doing so according to, uh, 1348
rather, rather strict, uh, authority as set forth in the statutes, 1349
and the court decisions and interpret them. I am aware 1350
nowhere, of, of no authority of, I’m nowhere aware of any, 1351
of any decision or, or statutory provision that says that you 1352
are authorized to tread more lightly in a situation like this 1353
in the case of a permit that was issued, a zoning permit that 1354
was issued upon the application of an ordinary citizen, 1355
someone not represented by an attorney, someone who is 1356
not charged, really, with familiarity with the law. I don’t 1357
think that you even have to consider, though, that 1358
circumstance because I’ve laid out for you a timeline 1359
showing how all of this, this, this proceeding of whatever 1360
sort, before the Planning and Zoning Commission, how it 1361
took place during the pendency of that earlier appellate 1362
proceeding. Before the Town, or before Mr. Carey, on 1363
your behalf, had even had a chance to respond to Mr. 1364
Heller’s brief, and certainly before the Appellate Court had 1365
had a chance to address the issue, these matters were 1366
proceeding and, again, I’m not saying this to be snarky or 1367
snide or anything like that, but simply to point out that it’s 1368
quite clear that the application for the, uh, zoning permit at 1369
issue was done with the knowledge, if not the, uh, 1370
participation of the applicant Green Falls Associates’ 1371
attorney, Mr. Heller. I have a, a letter from the building 1372
official concerning, uh, this, uh, property, this application 1373
dated 2/24/12. It’s addressed to Attorney Heller. I’ve got 1374
for you a copy of a letter from Dieter and Gardner 1375
Engineers, signed Mr. Gardner, uh, who, uh, Manager of 1376
Green Falls Associates, on February 3rd, 2012, um, 1377
inquiring of Mr. Sanders regarding Cherry Lane zoning 1378
permit application. “We have prepared this plan in 1379
accordance amended Zoning Regulation 4.13 16, uh, Uncas 1380
Health District is reviewing. Please review for 1381
conformance with zoning. If any questions please call, 1382
signed Peter Gardner, cc Attorney Harry Heller.” I, again, 1383
it gives me no pleasure in bringing this point up, but only to 1384
say that I think this Commission can reasonably find or 1385
hold that where an applicant for a zoning permit is 1386
represented by counsel that he ought to be charged with 1387
knowledge of the rules of the regulations that his same 1388
attorney was, then, appearing in appellate proceedings 1389
concerning this lot, um, and, by the way, (inaudible)…and 1390
so, as I said, there’s no authority that I know of that allows 1391
you treat a, a civilian, if you will, to use a legal term, a pro 1392
se applicant, any differently than one represented by 1393
counsel, but even if you were inclined to do so, this 1394
applicant for a zoning permit was not in that, uh, situation. 1395
I neglected to mention that one of the things that was 1396
discussed by Town Planner Vlaun in that transcript…bear 1397
with me for just one moment…Mike, can I borrow from yo 1398
that exhibit (inaudible) transcript (inaudible)…again, it’s 1399
not the, uh, the statement of the, of the body of the 1400
Planning and Zoning Commission that this is the purpose 1401
of the regulation, uh, either, but Planner Vlaun did talk that 1402
night, I’m sorry it was Attorney Heller who said this, who 1403
said that “the reason we,” again, whoever we, “one of the 1404
reasons we are doing this,” this is page five of the 1405
transcript, line 152, it’s necessary to do this, it’s necessary 1406
to have these sort of relaxed rules to allow the development 1407
of a very small, uh, uh, uh, uh, or, or, “or, at least very 1408
narrow in terms of frontage, uh, or, or, small in terms of 1409
area of a non-conforming lot, page five, line 152, “in order 1410
to avoid a confiscation, a regulatory taking, the regulations 1411
need to provide some relief so that these pre-existing, non-1412
conforming lots can be developed.” Now, why do I tell 1413
you that’s significant? Because the Appellate Court when 1414
it did rule in the earlier proceeding, some months, perhaps, 1415
a year after that, in fact, stated that in your decision that 1416
was appealed by Green Falls, upheld by Judge Purtill and 1417
then upheld by the Appellate Court that there was no 1418
confiscation in your decision when you decided that this lot 1419
was not, did not meet the requirements for the granting of 1420
variances. And, again, uh, that’s, uh, stated very clearly in, 1421
uh, the decision, uh, of the Appellate Court. Uh, I, I, I just 1422
think that it’s really quite ironic that the, that the Appellate 1423
Court hadn’t been allowed, or, or, or had everyone simply 1424
waited to hear what it had to say that any, any concern, at 1425
least on the part of the Town Planner, this might’ve been 1426
the effect, that this is would be, that this was the reason 1427
why this had to be done, um, uh, was rendered, in fact, 1428
moot. The Appellate Court said that what you did in that 1429
earlier case was just fine. You didn’t take away anyone’s 1430
constitutionally protected co-, uh, uh, property rights by 1431
denying that, uh, that variance. So, again, this was not the 1432
Commission’s, Planning and Zoning Commission’s own 1433
statement as to purpose, but to the extent that it was being 1434
suggested to them by either Attorney Heller or Planner 1435
Vlaun that that’s why this had to be done. They didn’t 1436
have to do that because the Appellate Court, as I said, ruled 1437
that what you did was just fine. It did not deprive anyone 1438
of constitutional rights. 1439
I, I can certainly imagine that Attorney Heller, on his 1440
client’s behalf, is going to have some things to say and, uh, 1441
and certainly, he is, he is entitled as a member of the public 1442
to, uh, to make a, make comments and a presentation. I 1443
would just like, however, to clear for the record, as follows: 1444
two exhibits, I think they’re just about the last two, I’ll 1445
hand them to you and then discuss them…again, if I give 1446
you, I have several copies here, I see, uh, one of these, 1447
uhm, yep, I do have enough for all concerned. If there are 1448
any extras, please discard them. One for the record of that. 1449
One for the record of this. Copies for everybody. Again, 1450
for the record, not intended to…nothing personal, in fact, 1451
no pleasure in, in saying anything as to these, but simply to 1452
remind you that this is an appeal from the decision of Mr. 1453
Sanders to grant the permit. These documents demonstrate, 1454
I think, pretty clearly that Mr. Sanders has for, certainly, 1455
formally for considerable periods of, uh, time, uh, Mr. 1456
Sanders has been represented, legally represented by 1457
Attorney Heller in a variety of other matters. One was a 1458
lawsuit against the Inland Wetlands Commission and 1459
another one was a, an appeal, I think it’s really the un-, 1460
underlying administrative, uh, proceedings, uh, in that same 1461
matter, uh, in December 2012 where you can see that, I’m 1462
sorry, Zoning Board of Appeals, different matter, entirely, 1463
Zoning Board of Appeals, December 5th, 2012, talks about 1464
you, Chairman MacNeil, and, uh, under Old Business, uh, 1465
uh, a, uh, an application for variances by Mr. and Mrs. 1466
Johnson and…oh, I’m sorry, just up above, the, uh, the 1467
applications, uh, for, number 4A, application for variances 1468
by Mr. and Mrs. Johnson, um, on the second page 1469
Chairman MacNeil asked if there was anyone who wanted 1470
like to speak in opposition to the application. Attorney 1471
Heller spoke on behalf of an abutting property owner T. 1472
Sanders. Now, I am not suggesting, nor do I have any 1473
authority to suggest or request that Attorney Heller should 1474
in any way have to recuse himself or step down from 1475
representing his client here tonight, anything like that, 1476
that’s not why I’m bringing this up. However, I think it 1477
does go to the issue bias. Here you have an attorney here 1478
tonight representing his client, Greens (sic) Falls 1479
Associates, LLC, in an appeal of Mr. Sanders’ decision. 1480
Mr. Sanders is also represented by Attorney Heller as his 1481
personal attorney in a variety of, uh, proceedings. Again, 1482
simply suggesting that, as to the issue of bias in the 1483
opinion, uh, or, or, or statements that are made by anyone, 1484
uh, you know, be it, you know, Attorney Heller, be it Mr. 1485
Sanders in his granting of this permit. I’m not suggesting 1486
anything improper, but I’m suggesting an underlying 1487
reason that could be construed as biased based simply on 1488
the information that I’ve laid in front of you. 1489
And, finally, I’m sure you’ve been waiting for me to say 1490
that for a very long time, I want to draw your attention to 1491
the permit, itself. You have this in evidence. Zoning 1492
Permit issued by Mr. Sanders, number 2012 or 212-006. 1493
It’s dated 2/6/12 and the reason that’s interesting, gets back 1494
to those excerpts from the Zoning Regulations, there was a 1495
page that I said that I was going to skip over, and that’s 1496
page 19, Section 4.5, Expiration. It talks initially about 1497
zoning permits as required under Section 18, those are site 1498
plan zoning permits that, uh, that expire after five years. 1499
That’s not what we have here. The right to construct 1500
improvements under those shall expire five years after the 1501
date of issuance. And as to those permits, the Commission 1502
may extend the time period with, within which, uh, to 1503
complete improvements pursuant to a special permit. It’s 1504
not, not what we’re dealing with here. It says very clearly, 1505
“all other zoning permits shall expire one year after the date 1506
of approval if all permitted work has not been completed.” 1507
Well, do the math. This permit was issued on 2/6/12. The 1508
evidence before you was that construction on the property, 1509
in other words, something that might show a reasonable 1510
member of the public that something is being done. Here it 1511
was just the clearing of, of trees, which I don’t even think is 1512
enough for that purpose. That took place in August 2013. 1513
So a year had passed, a full year had passed from February 1514
2012 to February 2013. The regulation says if all 1515
improvements haven’t been completed, the permit expires. 1516
Now, we’ve been down this road before also, Mr. 1517
Chairman, in connection with those proceedings with Mr. 1518
and Mrs. Cockerham. There, we had a different scenario. 1519
A property owner, a lot owner had obtained a zoning 1520
permit, began to build a house in, let’s say, maybe, month 1521
ten. Presumably. he thought he could do it pretty quickly. 1522
It was a modular house and, due to whatever amount of 1523
delay resulted from the hearing procedures, uh, it was 1524
noticed, uh, or, perhaps as the result of any such delay, it 1525
was noticed, I think by me, during those proceedings that a 1526
year had passed. Here, as we were in the middle of a 1527
proceeding, in the middle of a hearing appealing that permit 1528
again, if you wanted to give the benefit of the doubt, had 1529
there not been an appeal, perhaps the lot owner of the 1530
Cockerham case could have finished his house within the 1531
one year. Um, the regulation doesn’t say that, but, uh, you 1532
know, one, one could, perhaps, distinguish the situation on 1533
those grounds. It’s not what you have here. You have a 1534
permit that under the regulations expired because all work 1535
required under it was not done within that period. The 1536
Cockerham situation, Mr. Sanders was amenable to 1537
renewing that permit, that, again, probably wouldn’t have 1538
been an issue had there not been an appeal and the house, 1539
uh, modular home finished, you know, bolted down, the 1540
foundation, whatever it is. That’s not the situation we have 1541
here. And, even if the regulations can be stretched, and I 1542
don’t believe that they can be, and Judge Purtill’s, uh, uh, 1543
lack of interest, if you will, in that issues is part of a 1544
decision that is under appeal or further appellate review is 1545
being sought now so it’s not a final decision, not a, not a, 1546
not a final, uh, appellate decision on which you can rely at 1547
this point, but again, in any event, it’s distinguishable 1548
because here, no work was done, no work was apparent, no 1549
work was begun under the permit until well after that year 1550
had passed. Your regulation says what it says, it says that 1551
such permits are expired, it doesn’t say anything about 1552
renewing them, it doesn’t say anything about what happens 1553
after this passage of time and I submit to you that that 1554
language means something or it means nothing and you 1555
have to decide in that case. 1556
Atty. Carey: Mr. Chase -- 1557
Atty. Chase: Just, just one more minute, Mr. Carey, and I’m finished. 1558
Atty. Carey: I just have a quick question. 1559
Atty. Chase: Oh, sure, sure. 1560
Atty. Carey: You’re saying no work was done during the – 1561
Atty. Chase: What I, what, to, to, to, -- 1562
Atty. Carey: one year period of the permit? 1563
Atty. Chase: -- to clarify, the time that my client, Mr. Chase, the date, 1564
uh, uh, the approximate date that, uh, he noticed trees being 1565
cut down, which under the stabi-, the standard, that, uh, 1566
that, uh, Judge Purtill discussed in the earlier appeal 1567
decision, was not even necessarily enough that would, that, 1568
that, that it should cause someone to believe that a zoning 1569
permit has been issued, but that, that earliest time that work 1570
was observed, uh, causing, uh, further inquiry, uh, within a 1571
few days here, that that was in August 2013. 1572
Atty. Carey: Were you relating that information based on your own 1573
knowledge or… 1574
Atty. Chase: I’m based, I’m, I’m relaying it based on what it said on the 1575
affidavit. It states that, that trees were noticed being cut 1576
down and the lot being cleared on August 2013. I don’t 1577
know how other work like a foundation, construction or 1578
something could have proceeded the clearing of the lot. In 1579
fact, it didn’t. According to the affidavit, it took place later 1580
here. I don’t know what the definition of work is, uh, uh, 1581
uh, uh, other than the -- 1582
Chairman MacNeil: We’ll add that to the question of what ‘or’ means or ‘and’-- 1583
Atty. Chase: Yeah, well, but, again, uh, I’m, I’m just, just on the subject 1584
of that expiration… 1585
Chairman MacNeil: I understand. 1586
Atty. Chase: I, I believe as the, that, uh, that it would be the, the, the 1587
duty, among other things, of this Commission, uh, to, if it 1588
were to see, uh, as it seems, plain to me in black and white 1589
that this permit was expired, uh, that it should, uh, refer this 1590
matter to Mr. Sanders for enforcement action. Uh, a, uh, 1591
uh, uh, construction work was taking place upon a clearly 1592
expired zoning permit that was expired before the 1593
construction work even begun, had even begun, if, uh, if, if, 1594
if it’s not your pleasure to, to make that referral, Mr. 1595
Sanders, myself, let me state it here tonight that, that I 1596
request it be done so. Beyond that, um, as to the remainder 1597
of the things that we have discussed, if you have any 1598
questions, particularly about ‘or’, as you said, Mr. 1599
Chairman. 1600
Chairman MacNeil: I’m kidding. 1601
Atty. Chase: Okay. (inaudible) Thank you very much. 1602
Chairman MacNeil: Thank you, Jon. Do you need a few minutes, uh, Mike? 1603
Or are we ready for, uh…. 1604
Atty. Carey: I could probably use about 5 minutes. 1605
Chairman MacNeil: Alright, um, one more five-minute recess, please. 1606
Atty. Carey: Thank you, Mr. Chairman. 1607
Chairman MacNeil: Okay, we’re, uh, back, um, in, uh, session. Um, we also 1608
have, um, a new member on the Board that brought his 1609
daughter. He thought the meeting was going to be an hour. 1610
He’s concerned about keeping her here too late. I asked, 1611
um, I’m going to ask, um, the, um, next, Attorney Heller, 1612
he’s hoping we won’t be more than 30 minutes, we might 1613
have to continue this hearing, but, I’m hoping that, he, he’s 1614
agreed to stay for another thirty minutes, so, hopefully, um, 1615
I’m not sure that’s going to be enough time, but, um… 1616
Atty. Carey: I think in the mean time, uh, I don’t know how long 1617
(inaudible) 1618
Chairman MacNeil: Yeah, we don’t want to -- 1619
Atty. Carey: Mr. Sanders, I think, -- 1620
Chairman MacNeil: We still would have -- 1621
Atty. Carey: (inaudible) his materials -- 1622
Chairman MacNeil: We would still have a quorum even if he leaves. 1623
Atty. Carey: I think it would be better to have everybody here. 1624
Chairman MacNeil: I agree. I’m just… 1625
Board Member Adams: I have a feeling that it’s going to be Mr. Chase’s turn to get 1626
back up and blah blah blah and this is going to go way 1627
beyond the half hour. Without a doubt in my mind. 1628
Atty. Carey: Oh, I agree. But, what Mr. MacNeil is saying is that we 1629
could, arguably, proceed with just the three of you and then 1630
Mr. Aquitante would have to read the, uh, listen to the tapes 1631
and so on, I think it would be preferable to have everybody 1632
here -- 1633
Chairman MacNeil: Okay, so let’s keep it here for thirty minutes and see how it 1634
goes and we’ll go from there. Ummm -- 1635
Atty. Carey: Subject to hearing from the folks in the room. 1636
Atty. Chase: Since it was under the, uh, rules set forth by the Appellate 1637
Court in Green Falls (inaudible), since it was my preference 1638
to proceed with five rather than four, I would certainly, uh, 1639
uh, be, amenable to continuing with four, provided that Mr. 1640
Aquitante realizes and recognizes the need to review the 1641
tapes (inaudible)… 1642
Chairman MacNeil: Understood. 1643
Atty. Chase: (inaudible) 1644
Chairman MacNeil: Okay. 1645
Atty. Carey: We have 35 minutes to clear the air. 1646
Atty. Chase: Oh, I see. Understood. 1647
Chairman MacNeil: Okay. 1648
Atty. Chase: (inaudible) 1649
Chairman MacNeil: Understood. Okay. So to not waste any more time, um, is 1650
there anyone else who would like to speak in favor of this 1651
application? Okay. 1652
Mr. Sanders: I’d like to enter into the record, we’ve already got a copy of 1653
the complaint. 1654
Chairman MacNeil: I guess, you know, we already know you, Tom, but just for 1655
the record. 1656
Mr. Tom Sanders: For the record, Tom Sanders, Zoning Enforcement Officer, 1657
Assistant Planner. 1658
Chairman MacNeil: Okay. 1659
Mr. Sanders: You have your copy of the, uh, complaint, copy of the, uh, 1660
Zoning Reg…, uh, the Zoning Permit, the Health 1661
Department report, (inaudible) Dieter and Gardner, 1662
Construction sign-off sheet, and the Construction Permit 1663
Approval from the Building Department, and a copy of the 1664
(inaudible) that was presented with the Zoning (inaudible). 1665
Atty. Carey: Mr. Sanders, I notice that you also have a list -- 1666
Mr. Sanders: That list is for -- 1667
Atty. Carey: personal purposes? 1668
Mr. Sanders: (inaudible) 1669
Atty. Carey: Okay. Sorry. 1670
Mr. Sanders: (inaudible) 1671
Chairman MacNeil: Thank you. 1672
Board Member Adams: Thank you. 1673
Chairman MacNeil: Alright, would anyone like to speak, uh, on any matter? 1674
Atty. Heller: For the record, Attorney Harry Heller, 736 Route 32, 1675
Uncasville, uh, representing the property owner Green Falls 1676
Associates. Let’s talk about what this appeal is and what it 1677
isn’t. The appeal is an appeal of the decision of the Zoning 1678
Enforcement Officer to issue a zoning permit for a single-1679
family residence at 310 Cherry Lane. We are of the 1680
opinion that this Board lacks subject matter jurisdiction to 1681
hear this appeal and I’ll get into that in a moment. But, 1682
there are some other things I want to address based on 1683
what’s been presented to the Board this evening. Um, first, 1684
it is our position that the appeal, which filed, is deficient 1685
and fatally deficient because it does not indicate 1686
whatsoever what the reasons are for the appeal. It just says 1687
it’s appealing the decision of the ZEO to issue a Zoning 1688
Permit for the construction of a dwelling house on this 1689
property. It does not provide any information whatsoever 1690
that would allow either the zoning enforcement officer, the 1691
property owner, or the public to intelligently prepare to 1692
make a presentation before the Board at this hearing. So, 1693
we submit that the application is deficient. Secondly, 1694
notices were introduced into the record this evening that 1695
which where, which were provided to Paul and Johann 1696
Chase and to Helga Butler of the pendency of this hearing. 1697
No notice was provided to the applicant, uh, or to the 1698
property owner as to the pendency of this hearing. Um, I 1699
believe that due process requires, uh, that adequate notice 1700
of the hearing be provided to the property owner, uh, who 1701
is the real party of interest in this proceeding. With respect 1702
to the subject matter jurisdiction of this Commission, uh, 1703
when Mr. Chase made his presentation to the Board this 1704
evening, he spoke about timeliness, uh, and he spoke about 1705
proceedings that occurred before this Board with respect to 1706
the Cockerham decision, but he also talked about 1707
publication and publication being notice to all of the world. 1708
And, Connecticut jurisprudence makes a distinction 1709
between constructive notice and actual notice. 1710
Constructive notice is publication in a newspaper and our 1711
courts have construed that to be subject matter 1712
jurisdictional, that it is a prerequisite to provide, uh, subject 1713
matter jurisdiction to entertain a proceeding, uh, whereas 1714
actual notice is, does not go to the subject matter 1715
jurisdiction of a Board or Commission to hear an 1716
application. There is a statute that was adopted several 1717
years ago, it is Section 8-3, sub-section F, of the 1718
Connecticut General Statues and it provides “no building 1719
permit or certificate of occupancy shall be issued for a 1720
building use or structure subject to the zoning regulations 1721
of a municipality without certification in writing by the 1722
official charged with the enforcement of such regulation 1723
that such building use or structure is in conformity with 1724
such regulations or is a valid non-conforming use under 1725
such regulations. Such official shall inform the applicant 1726
for any such certification that such applicant may provide 1727
notice of such certification by either publication in a 1728
newspaper having substantial circulation in such 1729
municipality stating that the certification has been issued or 1730
any other method provided by a local ordinance. Any such 1731
notice shall contain a description of the building use or 1732
structure, the location of the building use or structure, the 1733
identity of the applicant and a statement that an aggrieved 1734
person may appeal to the Zoning Board of Appeals in 1735
accordance with the provisions of Section 8-7.” Here’s that 1736
for the record… 1737
Unknown Board Member: Thank you. 1738
Board Member Adams: Thank you, Harry. 1739
Atty. Heller: The pertinent part of Section 8-7 of the General Statutes 1740
provides “an appeal may be taken to the Zoning Board of 1741
Appeals by any person aggrieved or by any officer, 1742
department, board, or bureau of any municipality aggrieved 1743
and shall be taken within such time as is prescribed by a 1744
rule adopted by said Board or if no such rule is adopted by 1745
the Board within thirty days, by filing with the Zoning 1746
Commission or the officer specif-, or the officer from 1747
whom the appeal has been taken and with said Board a 1748
notice of appeal specifying the grounds therefore.” So, the 1749
statute also requires that the appeal to your Board specify 1750
the grounds upon which the appeal is founded. “Such 1751
appeal shall commence for an aggrieved person at the 1752
earliest of the following: upon receipt of the order 1753
requirement or decision from which such person may 1754
appeal, upon the publication of a notice in accordance with 1755
sub-section f of Section 8-3,” which is the statute I just 1756
entered into the record, “or upon actual or constructive 1757
notice of such order requirement or decision” which was 1758
the case you had in the Cockerham decision and Judge 1759
Purtill in that decision enunciated, uh, at the Superior Court 1760
level what he construed to be constructive notice. I’ll 1761
introduce Section 8-7 into the record.… 1762
The Zoning Permit, on its face, which is part of the record 1763
in this proceeding, indicates that it was issued on February 1764
6, 2012. On March 8, 2012, in accordance with Section 8 1765
3(f) of the Statutes, notice of the issuance of the Zoning 1766
Permit was published in The Montville Times, a newspaper 1767
having a substantial circulation in the Town of 1768
Montville.…The Montville Times is a weekly publication 1769
with a substantial circulation in the Town of Montville. At 1770
the time that publication occurred,…the circulation of The 1771
Montville Times was 5,500 households in the Town of 1772
Montville. By way of comparison, the circulation of the 1773
Sunday edition of The Day was 2,431 households and the 1774
circulation of the Monday to Saturday Day was 1,911 1775
households. So, certainly, uh, The Montville Times had a 1776
circulation which was substantial within the Town of 1777
Montville. Um, Mr. Carey, I have the original excerpt of 1778
the, um, publication from the paper, do you require that or 1779
will a copy be sufficient? 1780
Atty. Carey: (inaudible) 1781
Atty. Heller: Do you have the original? alright…I’ll introduce the 1782
original, I’ll also introduce into the record the confirmation 1783
from The Day of the publication.… 1784
Based on the CERC Town Profile for Montville for 2013, 1785
uh, the housing stock in Montville in 2012, there were 1786
6,990 housing units, um, so, again, with the circulation of 1787
5,500 with 6,990 housing units, uh, the circulation of The 1788
Montville Times was substantial. It is, therefore, our 1789
position that the appeal period, uh, to appeal the issuance of 1790
the permit, which is the subject of the appeal to this Board, 1791
has expired and this Board has no subject matter 1792
jurisdiction to entertain the appeal. I would, however, like 1793
to address the issue of the language of Section 4.13.6 of the 1794
Zoning Regulations.… 1795
Chairman MacNeil: Joe, do you want to leave? (inaudible) Just one second. If 1796
you want to leave now, you’ll just have to listen to 1797
whatever tape’s left before we make a decision unless you 1798
want to hang out some more, it’s up to you. 1799
Board Member Aquitante: (inaudible) 1800
Chairman MacNeil: Okay. 1801
Unknown: (inaudible) 1802
Board Member Aquitante: (laughing) hanging in there! 1803
Board Member Adams: Harry, do you need more? Because I could share mine with 1804
him. 1805
Atty. Heller: Yeah, (inaudible). Thank you. 1806
Board Member Adams: You’re welcome. 1807
Atty. Heller: Section 4.13.6 is not a new provision in the Zoning 1808
Regulations. It was amended effective December 15, 2011, 1809
but in substantially its same form with two important 1810
changes, it has been as Section 4.13.6 in the Zoning 1811
Regulations, I believe, dating back to 1986 and then there 1812
was a predecessor with very similar language, uh, but with 1813
a different numbering system prior to 1986. Two changes 1814
were made in the December 15, 2011 amendment. The 1815
first change is that the concept of lot width rather than lot 1816
frontage as a determining factor for relief from the side 1817
yard setback requirements was incorporated into the 1818
regulation. The second change was the addition of two 1819
more categories in the table that specifies lot width rather 1820
than lot frontage and the correlating minimum side yard 1821
width requirement adding the last two categories of 76 to 1822
85 feet and 86 to 95 feet. The language cited by Attorney 1823
Chase, which says, which have a total area less than the 1824
minimum required in the District or a lot width, which is 1825
less than the minimum in the District, has not changed. 1826
That language has been in the Zoning Regulations, 1827
certainly back to 1986, and, I believe, uh, back until 1970 1828
when Zoning Regulations were originally adopted in 1829
Montville because the very reason that it took five of six 1830
referendums to adopt zoning in Montville was because 1831
Zoning occurred so late in our Town, in the Town’s 1832
development, that there was substantial concern based upon 1833
the number of non-conforming lots within the Town and, 1834
for that reason, it was difficult to get a majority to adopt a 1835
zoning ordinance in this municipality. That language with 1836
the word ‘or’ has been utilized by the Planning and Zoning 1837
Commission, it has been utilized by the Zoning 1838
Enforcement Officer to issue countless permits for non-1839
conforming lots in Montville that have both less than the 1840
required lot area and less than what was previously the 1841
required lot frontage, now lot width. So, based upon the 1842
very case law that Attorney Chase cited, there has been a 1843
consistent interpretation in this Town going back many, 1844
many years, um, that has interpreted that regulation as 1845
applying to sub-standard non-conforming lots in Town in 1846
order to provide relaxation from the setback requirements 1847
in order to allow these lots to be developed. 1848
The final point that I want to make is that if you look at the 1849
Zoning permit that has been issued or introduced into the 1850
record as the, uh, subject of this appeal, I call your 1851
attention…to the construction permit approval, um, which I 1852
believe, is the last page of the information that is stapled 1853
with the zoning permit and you’ll see on the permit 1854
issuance approval, uh, Mr. Sanders’ signature with a date of 1855
January 10, 2013. I submit to you that, even though this is 1856
totally outside the scope because what’s being appealed in 1857
the appeal that was appealed with your Board is the 2012 1858
permit, that this permit was renewed and that Zoning 1859
Permits in the Town of Montville are renewed by the 1860
Zoning Enforcement Officer as a matter of course because, 1861
I believe, you probably all have personal knowledge that 1862
we have many single family residences in Montville, uh, 1863
that are not completed within the one-year period. So, that 1864
concludes my presentation. Um, notice of this zoning 1865
permit was published in accordance of 8 3(f) of the statute, 1866
um, the appeal period expired without an appeal being filed 1867
with your Board and you have no subject matter 1868
jurisdiction to enterta-, to entertain this appeal. 1869
Chairman MacNeil: Is there anyone else who would like to speak on this matter, 1870
um, Mr. Chase? Mr. Chase? 1871
Atty. Chase: I’ll be quick. I’ll address these in reverse order. The, the, 1872
the statement that the February 2012 permit issued by Mr. 1873
Sanders was renewed by virtue of something that’s stapled 1874
to it is, I think, uh, fallacious interpretation. The permit is 1875
the permit. There’s no, there’s nothing in your regulations 1876
providing for renewal. There was a unique situation where 1877
it came up in the Cockerham proceedings where the delay 1878
of construction was, perhaps, uh, the result of the appeal of 1879
the proceedings. This Commission allowed a renewal or, 1880
or, or Mr. Sanders renewed, uh, the permit by simply 1881
issuing what amounted to another one. Maybe he’ll do that 1882
here. Maybe that’s what’ll have to take place here in order 1883
that we can proceed to a resolution on this issue. But to 1884
state that it was renewed because of a piece of paper that’s 1885
been stapled to it, I think, is, uh, is, is certainly a stretch. 1886
There’s nothing in the Regulations that states that there is 1887
any method of renewal, let alone by stapling a piece of 1888
paper, um, as an exhibit, uh, in a, in a proceeding. Um, 1889
when was it stapled on? I don’t know. How do we know? 1890
Next, there is no question, I have not, uh, attempted to 1891
convince you otherwise that the language of 4.13.6, 1892
particularly the language containing the word ‘or’, is 1893
something recent, uh, of enactment by the Planning and 1894
Zoning Commission. Their enactment or, rather, their, 1895
their amendment was to extend the provisions of that 1896
language to the two larger zones in the Town that were 1897
previously not included. Nevertheless, it was their decision 1898
to do so absent any language stating what the word was to 1899
mean in those circumstances, absent of understanding what 1900
it meant in any circumstances. But there is no legislative 1901
authority cited, be it in 19-, be it in 2011, be it in 1986 or, 1902
maybe, 1970, uh, for what the Commission intended, uh, 1903
nothing’s been presented here tonight stating that, you 1904
know, here is what we did and why, uh, be it a, uh, uh, uh, 1905
minutes from a, a, a Commission hearings back in 1970, be 1906
it, uh, be it an affidavit of a former member of the 1907
Commission or something like that, there’s been no such 1908
evidence presented, let alone even evidence that’s credible, 1909
uh, in other words, that someone might say today, here is 1910
what we did back in 1970 and why, uh, is, is, is certainly, 1911
uh, something that, uh, is, is lower on the scale in some sort 1912
of a contemporaneous, uh, indication on what the 1913
legislative intent was. Attorney Heller talked a lot about 1914
that there has been, that the, that this interpretation, that, 1915
that, first of all, that there is an interpretation that the word 1916
‘or’ means ‘and’ here and it’s been utilized in the issuance 1917
of countless permits by the ZEO, by the Planning and 1918
Zoning Commission, Wetlands Commission, or what have 1919
you. Again, we’ve sort of been here before. I seem to 1920
recall it wasn’t all that long ago, a couple of years back, 1921
Attorney Heller testified that there were countless instances 1922
in which something else was done. The only evidence that 1923
was brought up in that proceeding was that it was done 1924
once subsequently. There’s no evidence presented here 1925
tonight of countless examples of reliance upon a particular 1926
interpretation in the issuance of permits and, even if there 1927
was, the issue, the, the question is not the interpretation of 1928
that regulation by the enforcement authority, Mr. Sanders, 1929
or the permit issuing authority or the Planning and Zoning 1930
Commission or the Wetlands Commission. The question, 1931
as framed by the Supreme Court, was what did the 1932
legislative body intend. And, in the absence of any 1933
specific, obvious guidance, clear guidance, in its decision 1934
as to what it intended, you’re to construe the word ‘or’ to 1935
mean ‘or’. It doesn’t matter what somebody said a year 1936
earlier that it meant, or twenty years later that it meant, it 1937
doesn’t matter that someone said consistently -- 1938
Board Member Adams: Mr. Chase, you already told us all this, you’re repeating 1939
yourself. 1940
Atty. Chase: Well, excuse me Mr. Adams, but -- 1941
Board Member Adams: You know, we all have time, we all have to get back to 1942
work. 1943
Atty. Chase: Mr. Adams, I’m not repeating myself when I say, -- 1944
Board Member Adams: ‘And’ or ‘or’. We know the definition of ‘and’ and ‘or’. 1945
Atty. Chase: And, and, Mr. Adams, my point is this. It doesn’t matter if 1946
Mr. Sanders or his predecessors or any other body 1947
interpreted that regulation wrongly for 20 years in 50 1948
instances. That’s not the standard. Now, getting back 1949
further to the points that were raised initially by Mr. Heller. 1950
First of all, the appeal form, which you have in front of 1951
you, has been filled out, now if there’s an error, if the 1952
applicant here for the appeal process, it’s even, even 1953
erroneous, I say, that it’s, as I’ve said earlier, uh, that it’s 1954
even titled an application, but if it’s, but if, if the applicant 1955
here has been misled by a form that says “fill this out as 1956
follows” and you have an appeal and yet there somehow 1957
has to be something more in order to constitute a valid 1958
appeal. Well, that is a very interesting argument. The form 1959
itself, clearly states, clearly has an area where you check 1960
the box, “The applicant’s reason for submitting this 1961
application is (check one): There is an error in an order 1962
requirement or decision made by the Zoning Enforcement 1963
Officer.” The statute imposes no greater standard than has 1964
been fulfilled by checking off the box appropriately here. 1965
It would, obviously, be an improper appeal if that box 1966
weren’t checked off even indicating that this was an appeal 1967
of any form whatsoever, if, if, if the, if the applicant were 1968
submitting this, uh, using appeal language as been used 1969
elsewhere, um, uh, on the, and checked off the box for a 1970
variance, well, Attorney Heller might have a point, or if 1971
something was said under the box “other describe”. 1972
There’s no “other describe”. No blank to describe. When 1973
you check the box, it says, “there’s an error in an order 1974
requirement or decision made by a Zoning Enforcement 1975
Officer.” So, we, we, we -- 1976
Chairman MacNeil: I guess to make a little bit of a comparison, if it’s missing 1977
on the form, and it’s, it’s supposed to be revealed just like 1978
the Zoning Officer, the Planning Department has, maybe, 1979
misinterpreted, and, and it’s still wrong, they’ve done it for 1980
20 years wrong. If the form isn’t inclusive, but it’s still a 1981
law that it’s supposed to be provided, just because it’s not 1982
in the form and you don’t know, if you know it’s supposed 1983
to be there and you don’t put it there, I mean, you’re the 1984
attorney, is that rules for leaving it out? I mean, is that. In 1985
other words, its kind of a gi-, you get away with it, if you 1986
know about it, you kinda’ should’ve included it is, I guess, 1987
is what maybe -- 1988
Atty. Chase: Maybe what you’re saying is should the form be changed 1989
going forward -- 1990
Chairman MacNeil: Well, maybe, if there’s an error in it -- 1991
Atty. Chase: I don’t think -- 1992
Chairman MacNeil: -- and if you know about it -- 1993
Atty. Chase: I don’t think there’s an error. 1994
Chairman MacNeil: Okay. 1995
Atty. Chase: -- and, I can certainly say that I’ve relied on it, the 1996
applicant, the appellant, here, has relied on it as have others 1997
in countless circumstances and I think that can be -- 1998
Chairman MacNeil: Well, that goes back to the Zoning Officer and in-, in-, 1999
interpretation-- 2000
Atty. Chase: -- readily demonstrated that the, that the forms, uh, that, uh, 2001
that, uh, that you, uh, -- 2002
Chairman MacNeil: -- should be updated somewhat. 2003
Atty. Chase: -- no, that the forms that you provide, um, uh, contain a, a 2004
sta-, you know, a box to check stating the reason that 2005
you’re doing so, that there is an e-, or there is an error -- 2006
Chairman MacNeil: I understand. 2007
Atty. Chase: -- in an order of the Zoning Enforcement Officer. 2008
Chairman MacNeil: Understood. 2009
Atty. Chase: Uh, the, the, the, I’m not aware of any decision interpreting 2010
the statute cited that imposes a greater standard than that. 2011
Um, and finally, as to the issue of, of, of, publication, um, 2012
this is, this is certainly news to me, um, if this is dispositive 2013
of the question why we certainly could’ve saved a lot of 2014
time an awful, you know, an awful long while ago. I, I, I, I 2015
do not concede, uh, that the, uh, that notice has been 2016
provided here, uh, and I do not concede a subject matter 2017
jurisdictional, uh, defect, um, nevertheless, the problem 2018
with the argument of Attorney Heller that this, that, that 2019
publication was somehow, was, was made somehow 2020
provided adequate notice upon which someone should have 2021
known that a permit was issued, then, is flawed for this 2022
reason. It would apply only to the permit as issued, which 2023
was issued back in February 2012 and, under the very 2024
terms of these regulations, expired. Now, if we’re going to 2025
come back next month, perhaps, and be appealing a new 2026
permit, or a new zoning permit, or renewed based on 2027
whatever authority that there is, and I submit, there is none. 2028
Then, we’re still back at the same place. So, I think in 2029
order to, in order to buy into or, or, or, or, or, shall I say, 2030
give credence to Attorney’s, Attorney Heller’s argument 2031
that the publication that he has presented creates a subject 2032
matter jurisdictional impediment, what you really have, 2033
then, is to decide the issue of what’s the point. It’s, you 2034
know, if, if the permit is expired, then, so what if it’s too 2035
late to appeal it, what difference does it make. If in order 2036
to address the issue and, and, two further points. Two 2037
further points. First of all, it’s Attorney Heller’s contention 2038
that that document attached which we’ve seen here tonight, 2039
which I have seen on behalf of my client tonight, 2040
constitutes a renewal. This is my first notice of it, if it is a 2041
renewal. Secondly, if -- 2042
Chairman MacNeil: It’s the same permit, though, it’s just a continuance, 2043
continuation of the same permit. It was written on the same 2044
form, the same permit is below it with the date, so it’s not a 2045
second permit -- 2046
Atty. Chase: May I see the exhibit? 2047
Chairman MacNeil: I mean, I have extended -- 2048
Atty. Chase: Wait, wait, show me -- 2049
Chairman MacNeil: I have extended permits, myself, personally, and once you 2050
get one zoning permit, if it’s about to expire, you go and 2051
you pay your fee and you renew it. 2052
Atty. Chase: Under whatever authority there is to do that, sure. You 2053
know, -- 2054
Chairman MacNeil: It’s the same permit, it’s just extended. 2055
Atty. Chase: If, if, if Groton or Waterford has a, you know, -- 2056
Chairman MacNeil: Well, then, here, take that. 2057
Atty. Chase: -- regulation, you know, I, you know, well, again, the 2058
regulations say what they say, but, a-, to be clear, this is the 2059
permit, attached to it is a form that, I think, you take around 2060
and get various other departments in town to sign off on, 2061
um, you know, I think what Mr. Sanders is saying here, and 2062
what this is, this form attached in this exhibit, which I’m 2063
seeing here for the first time, attached to the zoning permit 2064
of February 2012 is something by Mr. Sanders stating 2065
Thomas Sanders, uh, checking off that a zoning permit was 2066
issued on 2/6/12 and he signed it on 1/10/13. Okay, Mr. 2067
Sanders states that on 1/10/13, he issued a permit on 2/6/12, 2068
he did, we know that. Um, if this is a renewed or new 2069
permit, I’m seeing it here for the first time. I’m seeing it -- 2070
Chiarman MacNeil: It’s the renewal of the same permit. You’re seeing it for 2071
the first time. It’s not a new permit, as you just pointed out. 2072
It’s a continuation of the same -- 2073
Atty. Chase: If, if, if, if it is, as Attorney Heller -- 2074
Chiarman MacNeil: It precedes the expiration date. 2075
Atty. Chase: As Attorney Heller, if, if it is true, as Attorney Heller 2076
states, that this page constitutes a renewal and there’s 2077
nothing on here that it says that it does, in fact, it’s clearly a 2078
form that you take around to the Tax Collector, the Fire 2079
Marshal, the Health Department and so on as part of a 2080
Building Department Permit appeal process. I guess you 2081
check off to make sure that, you know, you don’t owe back 2082
taxes, that you don’t owe, uh, you know, sewer assessment, 2083
something like that. Mr. Sanders has stated on here that, 2084
well, this is all that it says permit 2120062612 signature 2085
Thomas Sanders 1/10/13. Honestly, uh, it is equally, if not 2086
more plausible, I would submit, that this, this is an 2087
indication simply by Thomas Sanders that on 2/6/12, he 2088
issued a permit. There’s nothing here that says ‘renewal’. 2089
Nothing. If this said renewal on it, we’d be arguing about 2090
the authority to renew a permit under the regulations. 2091
There’s nothing on this document that says ‘renewal’ and I 2092
emphasize that, for the record. And, again, if it is, to be 2093
construed as a renewal in January of this year, of the earlier 2094
permit, then again, I’m seeing it here for the first time. I 2095
know that what I should do within the next 30 days is go 2096
file an appeal if you’re telling me this is a, a renewal, but 2097
you’re telling me it’s not a renewal -- 2098
Board Member Freeman: What permit number do you see on this last page you’re 2099
referring to, this, quote, “the renewed” and what permit 2100
number, what permit number is on the first page? Is it the 2101
same? 2102
Atty. Chase: The fir-, uh, yes, it is the same. 2103
Board Member Freeman: Okay. 2104
Atty. Chase: It says, it says, you know, it says permit 212 da-, this is the 2105
second page permit 212-006 2/6/12 under the comments 2106
section. In fact, it’s under ‘comments’. The blank says 2107
‘comments’. Thomas Sanders commented on 1/10/13 that 2108
permit number 212-006, fill in the blank, 2/6/12, was issued 2109
on, was signed by me on, whatever, he doesn’t specify. I 2110
would appreciate clarification because if this is, if this 2111
constitutes a renewal of some authority, then I need to take 2112
a further appeal and we need to come back here and just 2113
state that everything we said here tonight constitutes the 2114
new appeal. If this is not a renewal then you should, you 2115
really need to give guidance to yourselves and to me as to, 2116
uh, as to, uh, or, or, or to state so. 2117
Chairman MacNeil: We could also leave the meeting open and we can confer 2118
with our attorney. 2119
Atty. Chase: Well, you could and, like, you know, although, I still think, 2120
and it’s with all due respect, I mean, please don’t take an 2121
offense, but I do believe that to the extent that it’s been 2122
alleged that is, is a renewal. I disagree with that. I think 2123
there’s nothing here that, in any way informs the reader that 2124
this is a renewal. There’s nothing in your regulations that 2125
grants such authority. Even so, if I file, if I file a new 2126
appeal next week, please forgive me. 2127
Chairman MacNeil: I think you’ve covered enough. We’ll review it (inaudible) 2128
with our Town Counsel and see what the best action will 2129
be. 2130
Atty. Chase: Perhaps, perhaps, uh, Attorney Carey, could, uh, give some 2131
indication within the next 30 days from tonight because, 2132
again, if we need to simply commence this process again, -- 2133
Chairman MacNeil: I understand. 2134
Atty. Chase: We can, we can do so (inaudible). 2135
Chairman MacNeil: Right, thank you. 2136
Atty. Chase: Thank you, Chairman. 2137
Atty. Carey: Mr. Chairman? 2138
Chairman MacNeil: Yes. 2139
Atty. Carey: I don’t think it’s my role to be giving legal advice to private 2140
parties. 2141
Chairman MacNeil: Private parties -- 2142
Atty. Carey: Mr. Chase has asked for me for an opinion as to whether I 2143
consider this to have been a renewal (inaudible) or 2144
something (inaudible) to file another appeal. 2145
Chairman MacNeil: Who do we turn to to find out if this was a valid renewal? 2146
Board Member Freeman: Wouldn’t it be the drafter’s intent? The drafter, in this 2147
case, would be who? 2148
Chairman MacNeil: Well, it’s the, it’s the Zoning Enforcement Officer, who is, 2149
who is -- 2150
Atty. Chase: If, if, if I may, I think I can provide some guidance, uh, and 2151
I think I can do so in the form of an actual document, we 2152
recall the Cockerham proceedings earlier and there, it’s my 2153
specific recollection that what was done was that the 2154
original form subsequently was written on the bottom after 2155
the expiration date, ‘renewed on so and so, Thomas 2156
Sanders, whatever date’. The word ‘renewed’ was clearly 2157
used, it was done on the original permit, we disagreed with 2158
the authority to do so, but there’s not question that, based 2159
on what was written and also, in fact, what was stated on 2160
the public record here at those earlier proceedings, that Mr. 2161
Sanders was, thereby, intending to renew the permit. 2162
There’s nothing there that, that, that says that that’s what he 2163
was intending to do. Obviously, if it were to (inaudible) -- 2164
Chairman MacNeil: We do know the document, um, obviously, it was on the 2165
appropriate form. It’s just, basically, it was, if this was, this 2166
is how they do it, this is how they do it, but if, obviously, it 2167
states the address and a permit number, but it is under the 2168
section that says permit, permit issuance approval so that 2169
was, and the signature and date, so, basically, I’m, I’m 2170
guessing, he’s basically reissuing it on the 13th, I mean on 2171
10, 1/10/13 -- 2172
Atty. Chase: I think you’re right, I think you’re guessing. 2173
Chairman MacNeil: Uh, I think I’m guessing, but, I mean, if this was presented 2174
to me, do you think this was made up and, and trying to 2175
pull one over on us tonight or you think that’s really what 2176
they do it -- 2177
Atty. Chase: Oh no, I’m not suggesting that at all, I think, I think what 2178
you have in front of you is -- 2179
Chairman MacNeil: I think you’re right, I think this is what they give you, Jon -2180
- 2181
Atty. Chase: -- is a check-off sheet that, uh, that, that one, clearly, takes 2182
around to different applicable bodies -- 2183
Chairman MacNeil: I know what it is. 2184
Atty. Chase: -- in the Town Hall, uh, for, for sign-off or comments or 2185
what have you and, apparently, well, again, I don’t want to 2186
guess, Mr. Sanders -- 2187
Chairman MacNeil: Well, I’m not going to guess. I’m going to, I, I -- 2188
Atty. Chase: -- it was taken to Mr. Sanders and -- 2189
Chairman MacNeil: Alright, I can verify by this, by looking at the, the records 2190
at the Zoning Enforcement Offices that this is how they do 2191
it, this is how they do it, this is what, this is what was the 2192
intent of this, was to reissue it. We can verify it. Is this 2193
how -- 2194
Atty. Chase: How can you, how can you verify -- 2195
Commissioner Adams: This is what I think, this is what I think, I think that the 2196
initial permit, okay, the initial permit before it can be issued 2197
has to be signed off by each and every one of these 2198
members that you see on this line. Before this permit can 2199
be issued, they all have to sign off on it. That would be 2200
permit number one. Permit number two, doesn’t need to be 2201
signed off on because it was already signed off on permit 2202
number one, there’s no reason to have this filled out any 2203
more. 2204
Atty. Chase: What would have happened if there were taxes that were 2205
overdue of some other thing that would affect the sign-off 2206
sheet during the interim? 2207
Commissioner Adams: Then, I would think that would be Tom Sanders job of 2208
finding that out. 2209
Atty. Chase: Hold on one second. 2210
Commissioner Adams: That would be my guess, that the first permit was all signed 2211
off. 2212
Atty. Carey: In my opinion, the appeal (inaudible). The permit that was 2213
issued on February 2012 (inaudible) 2214
Chairman MacNeil: Can you repeat that again a little louder? 2215
Atty. Carey: My opinion is that, it’s not an opinion, the appeal was taken 2216
from Permit 212-006 issued February something. 2217
Chairman MacNeil: Mm-hmm. 2218
Atty. Carey: I believe that’s what the appeal form says. 2219
Chairman MacNeil: Correct. 2220
Atty. Carey: Um, and the issue is, well, there are several issues now. 2221
(inaudible) This issue, I’m not sure is relevant (inaudible). 2222
We’ve heard a lot from both, from Mr. Chase and Attorney 2223
Heller (inaudible) discussions (inaudible) any more than 2224
that (inaudible) -- 2225
Chairman MacNeil: Joe? You’ve got to -- 2226
Board Member Adams: She just came and got her. 2227
Chairman MacNeil: Oh, I’m not even watching. Sorry. 2228
Atty. Carey: Just so I’m clear, was everything that Mr. Sanders gave you 2229
(inaudible) the record? 2230
Chairman MacNeil: I think it was, I think it was passed out before the meeting 2231
started so I’m not sure if it’s in the record.…This is the , 2232
yeah, this is the whole package that you gave us all.…Oh, 2233
okay, you’ve got one already? 2234
Recording Secretary: No, I don’t have one. 2235
Chairman MacNeil: Well, you have to have one. I’ll, I’ll steal one from up 2236
here. You can have that one for the record.… 2237
Atty. Carey: So, everything else (inaudible) 2238
Board Member Adams: So, the initial permit, everybody has to sign off on? 2239
Chairman MacNeil: That’s, that’s the thing you take around to get a permit, yes. 2240
Board Member Adams: Right. And then the other one, the second, the renewal 2241
doesn’t have to be signed. 2242
Chairman MacNeil: Do you have anything else to add, Jon? 2243
Atty. Chase: Well, only to ask this, if, if, if, if you intend to make a 2244
decision tonight, which is certainly your prerogative to do 2245
this, it becomes a kind of a moot point. If you do, um, 2246
close the public hearing tonight, but make a decision on a 2247
subsequent night, I only ask this that, uh, that comment was 2248
raised that hadn’t even occurred to me by, uh, until 2249
Attorney Carey raised it much earlier on for purposes of 2250
establishing aggrievement. It was the copy of the Deed that 2251
I submitted was not a certified copy, now there’s an 2252
affidavit, uh, by my client indicating his ownership of the 2253
property in question, uh, there are other documents 2254
including the permit applicant’s own, um, map, the large 2255
version, the one submitted, uh, by him that indicated 2256
ownership of the property, just across the street, the scale 2257
can clearly show that it’s within 100 feet. If the fact that 2258
the deed that was submitted is not a certified a copy is 2259
going to, would, would, would be an impediment to your 2260
find aggrievement, uh, and you, nevertheless, close the 2261
public hearing tonight, I request that it be kept open simply 2262
for the purpose of submitting a certified copy of that Deed. 2263
Just to foreclose that issue, which doesn’t seem to be a 2264
central issue here, uh, at all, if, if it is, uh, your pleasure to 2265
do so, I would, uh, I would appreciate -- 2266
Chairman MacNeil: You’re requesting that we receive that certified copy I 2267
mean it’s something that we certainly -- 2268
Atty. Chase: Well, well you could hold the public hearing open for the, 2269
for the purpose of receiving a specific document. 2270
Chairman MacNeil: Understood. 2271
Atty. Carey: Um, is there anyone else in the room (inaudible) that the 2272
hearing should be kept open (inaudible)? 2273
Chairman MacNeil: That should be what? 2274
Atty. Carey: That the hearing should be kept open. 2275
Chairman MacNeil: Does anyone else think, um, that we should keep this 2276
hearing open so that we can, uh, take more information if it, 2277
uh, -- 2278
Atty. Carey: (inaudible) ncluding Mr. Sanders, -- 2279
Chairman MacNeil: Yeah, yeah, from anybody -- 2280
Atty. Carey: (inaudible) for any reason (inaudible) if they wish it. 2281
Chairman MacNeil: I think, uh -- 2282
Board Member Adams: I…no. 2283
Chairman MacNeil: You don’t? 2284
Board Member Adams: No, I don’t. I, I’ve heard enough, I’ve heard a lot. Unless 2285
you think we need any more information. 2286
Chairman MacNeil: Well, I think that we need to, uh, um, since the point was 2287
raised about the certified map. I think that’s something we 2288
don’t want to disregard, we want to keep the record clean, 2289
you know, at this point, um, and -- 2290
Atty. Carey: Then, only for that, not, not to come back -- 2291
Chairman MacNeil: No, no, not to re-argue -- 2292
Atty. Carey: (inaudible) argument -- 2293
Board Member Freeman: Just a submission of that document. 2294
Chairman MacNeil: No, no, we want, but, I mean, we want to get in properly. 2295
Atty. Carey: My sense is that you probably (inaudible) some -- 2296
Chairman MacNeil: Clarification? 2297
Atty. Carey: Maybe some assistance from me in terms of drafting a 2298
motion or something (inaudible) plus Mr. Aqui-, Aqui--- 2299
Board Member Adams: Aquitante. 2300
Atty. Carey: -- Aquitante has to leave. 2301
Chairman MacNeil: Well, he’s all set. His daughter took off. 2302
Board Member Freeman: His wife came and got her. 2303
Chairman MacNeil: So, we’re good. 2304
Atty. Carey: (inaudible) the Board wants some assistance from me, and 2305
(inaudible). 2306
Chairman MacNeil: Well, I mean, after what’s been said tonight, yes. 2307
Atty. Carey: When is your next, your January meeting? 2308
Chairman MacNeil: Uh, well, we have the, we have the days here to approve. 2309
Board Member Freeman: We’re about to approve it. 2310
Chairman MacNeil: Or talk about it. Well, let’s see, -- 2311
Board Member Freeman: January 8th. 2312
Chairman MacNeil: January 8th. 2313
Atty. Carey: So that gives us (inaudible) to complete this within 35 days, 2314
is that correct? (inaudible) 2315
Atty. Chase: Quite honestly, if, if, if you, uh, wanted that, uh, certified 2316
copy need to be submitted earlier, say, within ten days, 2317
something like that, I’d gladly to do it, we don’t have to 2318
make issue of it. 2319
Chairman MacNeil: Either way, w-, th-, it’s just a matter of if we can close it 2320
and move on. Receive, close it, and move on. 2321
Atty. Carey: (inaudible) 2322
Board Member Freeman: Receive it without comment. 2323
Chiarman MacNeil: Yeah, receive it without comment, right. Just thank you, 2324
here you are. Understood. 2325
Atty. Carey: So, I guess you should vote to, uh -- 2326
Chairman MacNeil: Well, we’re going to ask the public if they need to say 2327
anything else before we do that. Is there anyone else that 2328
needs to get up needs to say anything, uh, at this 2329
point?…Nobody? Okay. Um, at this point, uh, I’m going 2330
to make a motion to, uh, continue, um, where are we 2331
here,…213 ZBA-2 until January 8th, 2014 at seven. Is there 2332
a second? 2333
Board Member Adams: I’ll second that. 2334
Chairman MacNeil: Motion made and second. All in favor? 2335
Board Members: Aye. 2336
Chairman MacNeil: So moved. Okay. 2337
Atty. Heller: (inaudible) continued for the sole purpose of accepting the 2338
Deed or is it being continued? 2339
Chairman MacNeil: It’s being continued for, for, for the, I mean, it was just 2340
continued. I didn’t put any, uh, restrictions on it. 2341
Atty. Heller: Okay, so you’re continuing the hearing. 2342
Chairman MacNeil: Right. 2343
Atty. Chase: So, we can come back and argue further next time. 2344
Chairman MacNeil: I would think that if you want to come back, you wouldn’t 2345
say the same thing. 2346
Atty. Chase: Okay, I just want to be clear, I mean, earlier you were 2347
talking about -- 2348
Atty. Carey: So, it’s not going to be limited to just (inaudible). 2349
Chairman MacNeil: you know what, I would think so, I mean, you, know, I 2350
mean, -- 2351
(inaudible) 2352
Chairman MacNeil: Yeah, yeah, I know, I mean, you know what, it wouldn’t be 2353
right, I mean, you know, we’re leaving it open and, but 2354
again, I just don’t want to refresh our memories and go 2355
over this whole two hours again, that’s all. Okay, but you 2356
might have something to add, you know. 2357
Atty. Chase: We, we might each -- 2358
Chairman MacNeil: Right. 2359
Atty. Chase: -- have something to add. Sure. 2360
Board Member Adams: Okay. 2361
Chairman MacNeil: Great. 2362
Atty. Chase: Fair enough, thank you. 2363
Chairman MacNeil: Thank you, Jon. 2364
Atty. Chase: Thank you. 2365
Atty. Carey: (inaudible) 2366
Chairman MacNeil: Yes, you are, thank you. Mike. 2367
Atty. Carey: Thank you, all. Merry Christmas, everyone. 2368
Chairman MacNeil: Same to you, Merry Christmas. 2369
Board Member Adams: Merry Christmas. 2370
Chairman MacNeil: Happy New Year (inaudible). 2371
Chairman MacNeil: Um, Old Business, now Tom can come back and join us. 2372
Tom, is there any Old Business, besides, I know what 2373
we’ve got on here with the meeting dates and stuff. 2374
ZEO Mr. Sanders: (inaudible) 2375
Chairman MacNeil: Okay, minutes, the last time we met was, uh, in June. 2376
Wow, that’s why we’re a little rusty. Um, I make a motion 2377
to, that we, um, accept and approve the minutes from the, 2378
uh, June 5th -- 2379
Board Member Freeman: Second. 2380
Chairman MacNeil: I mean second. All in favor, say aye. 2381
Board Members: Aye. 2382
Chairman MacNeil: Opposed? 2383
Chairman MacNeil: Communications, are there any? 2384
Board Member Adams: No. 2385
ZEO Mr. Sanders: No. 2386
Chairman MacNeil: Okay, um, any other business, uh, we gotta’ look at the -- 2387
Board Member Adams: Dates. 2388
Chairman MacNeil: We gotta’ look at the dates. Is there any conflicts, did any 2389
body have a problem with those dates. Tom, you already 2390
had your way with July 4th because this is before, so we’re 2391
good, right? 2392
ZEO Mr. Sanders: Yeah. 2393
Board Member Lakowsky: The next meeting is January 8th? 2394
Chairman MacNeil: Yes, we need you there. 2395
Chairman MacNeil: Okay. 2396
ZEO Mr. Sanders: The only one we, the only one we have a problem with, uh, 2397
the Fourth of July… 2398
Chairman MacNeil: I make a motion that we accept the meeting dates as 2399
proposed. 2400
Board Member Adams: Second. 2401
Chairman MacNeil: Motion made and second. All in favor? 2402
Board Members: Aye. 2403
Chairman MacNeil: Opposed? 2404
Board Member Adams: So moved. 2405
Chairman MacNeil: Um, make a motion that we adjourn. 2406
Board Member Adams: Aye, second. 2407
Chairman MacNeil: Second. All in favor? 2408
Board Members: Aye. 2409
Chairman MacNeil: Opposed? Okay. 2410