PLANNING & ZONING COMMISSION REGULAR MEETING APRIL 12, 2011

Present: Regular members Pat Hare, David Colbert, Heidi Kearns, James LaPorta, commission staff Karen Griswold Nelson and commission planning consultant Tom McGowan.
Absent: Regular member Chris Hopkins, Emily Pryor and alternate members Buddy Hurlburt and Josh Tyson.

PUBLIC HEARING:
App#214 – Allied Engineering Associates applicant/Stephen Hart property owner – Special exception for the siting of a single family resident outside of the buildable area on a flag lot created by the combination of a pre-existing non-conforming lot (with frontage on Railroad Street) and a rear parcel (with no frontage) with driveway access from Railroad Street – Article IV- paragraph 4.4 - Assessors Map H03 – Block 3 – Lots 10 and 20 – Railroad Street.

Chairman Pat Hare called the public hearing to order at 7:05 P.M. in Cornwall Library with a quorum established. All regular members were seated for the hearing.
Information made part of the record:
The legal notice, as published in the Waterbury Republican on March 31st and April 8th and receipt of certified mailings previously submitted to the Land Use office.
Original application including a site plan and a drainage report dated October 15, 2010.
March 8, 2011 review correspondence from Lenard Engineering, a consulting engineer from Winsted.
April 4, 2011 response from Allied Engineering accompanied by a revised site plan delivered to the Land Use office on April 5, 2011.
April 6, 2011 “second review” correspondence from Lenard Engineering.
Written correspondence from James and Lynn Fowler to be read into the record as public comment.
Mr. Hare addressed the request by staff to open the hearing so as to allow public comment but to continue the hearing due to missing information. It was stated that such information included but was not limited to a report from the Inland wetlands Commission, information requested by Lenard prior to a final review being rendered, a report from the Housatonic River Commission and a report from the Cornwall Fire Department. In response, Mr. Johannesen stated that he agreed to the continuation of the public hearing. The floor was opened to the applicant.
George Johannesen, PE and principle from Allied Engineering Associates and representative for Mr. Hart, made a presentation of the proposed plans submitted to construct a single family residence on the 10.08 acre site on the end and south side of Railroad Street uphill from Mr. Hart’s newly constructed home. Mr. Johannesen stated that the site met current zoning regulations with the exception of meeting the required buildable area. Addressing the topography of the site, Mr. Johannesen stated that very little of the site was under 25% slope. Stating that the project had started years ago, (referencing Ralph Niles) Mr. Johannesen gave a history of the site as shown, including the purchase of three parcels, two frontage and a rear landlocked parcel and the subsequent development of the proposed site for single family homes with adequate areas for septic and well through lot line adjustments. Mr. Johannesen addressed previous plans prepared for the siting of two new single family residences on the hillside, stating that the plans had been considered, approved by Torrington Area Health. Stating that the plans had been abandoned based on the finding that the plans proposed “a little too much” for the property, Mr. Johannesen addressed the decision to change the plans to the construction of a single 8 bedroom house as shown in the current plans submitted.
Mr. Johannesen addressed the location of the proposed house site and septic and the drainage areas in the plans as prepared providing for (post development) drainage patterns to drain in the same direction without diverting flows from the (pre-development) original drainage. Mr. Johannesen stated that Lenard Engineering, the town’s consulting engineer, did not have as much issue with the drainage calculations and drawings submitted as the stability of the hillside and the overall site. Mr. Johannesen stated that the plans were still under review with Mr. Hare’s clarification as to the issue being directly related to the “driveway sliding down the hill”. Mr. Johannesen addressed the driveway design stating that no portion of the proposed paved driveway was over 15% grade. In response to Commission questions, Mr. Johannesen pointed out details of the swales and retaining walls as part of the driveway design. Mr. Johannesen stated that the plans contained erosion and sedimentation control measures and a construction sequence and other details associated with maintenance. Mr. Johannesen closed his presentation with research showing the historic development of the area including driveway access to Railroad Street from homes formerly found on and near the site. (Copies of parts of old mapping submitted for the record.)
Mr. Colbert posed questions regarding the history of the parcels with input from Mr. Johannesen and staff (Griswold Nelson and Mr. McGowan) regarding the history and timing of the acquisition and merging of the three lots of record. In regards to the use of a landlocked parcel, it was stated (McGowan) that the lot would have to meet driveway and septic requirements and access via easement or acquisition of land. There was clarification that newly created lots would have to comply with the buildable area requirements as shown in Article 4.4. Mr. Johannesen addressed the plans as provided with the intent to combine the two lots to create one buildable lot and create flat areas for the construction of the house and septic In response to questions, it was noted that the three lots were currently not merged and that the existing vacant frontage lot had issues with complying with well and septic and buildable area.
The floor was opened to the public for questions and comments.
Joe Gwazdauskas, Railroad Street, noting a history of water issues in the area including this spring, questioned how the applicant could guarantee that drainage to downhill neighbors would not change. In response, Mr. Johannesen, noting that drainage issues existed prior to construction, stated that the plans as designed would not change downhill drainage. Mr. Hare noting that “mistakes can be made” in drainage design resulting in unavoidable changes, questioned if there had been consideration of re-directing drainage to areas of the site away from downhill homes. Noting that such a plan for water diversion was not permitted under current (wetlands) regulations, Mr. Johannesen re-addressed the plans as prepared, supporting his stand that post development drainage would not change
Griswold Nelson addressed the Cornwall Inland Wetlands Agency’s stated concerns regarding the impact of driveways on downhill neighbors, referencing similar issues in the recent past with driveways impacting downhill neighbors (for example Mr. Opgaard). Griswold Nelson advised the Commission that the matter of “shifting the burden of proof” from the impacted parties had been a question posed to town counsel, Attorney Grimes by the Cornwall Inland wetlands Agency. After giving an overview of the process that Attorney Grimes had recommended that the Inland wetland use in similar situations, Griswold Nelson stated that the opinion would be shared with the Commission and made part of the record. Griswold Nelson addressed other conditions that the Inland Wetlands Agency often used in their conditioning of permits, including strict construction sequences and 100% on site supervision by the applicant’s engineering representative. The P&Z commission’s purview in turns of erosion and sedimentation control and bonding were discussed with questions as to whether the P&Z commission could follow the Inland Wetlands Agency lead to be followed up by staff.

In response to Mr. LaPorta’s questions as to how the site had been chosen and whether other alternatives for the location of the house resulting in less impact had been considered, Mr. Johannesen gave an overview of the criteria used and the alternatives considered. Mr. Johannesen addressed areas considered for septic based on water patterns, grade and proximity to the residence.
Ruth Ellen Griffin, Railroad Street (no name or address given) noting rocks and trees removed from the site over the years, raised concerns regarding the impact of the drainage to their home. Siting ongoing issues over the year, Ms. Griffin asked Mr. Johannesen as to whether he had personal knowledge of the water issues on the site. In response, Mr. Johannesen stated yes, that he did. In response to continued concerns raised regarding the impact of the site to the downhill neighbors, Mr. Johannesen, stating that he tended to go overboard in his designs and had addressed all of the matters discussed. In response to questions raised by Mr. Hare as to the matter of “shifting the burden of proof” as outlined by Griswold Nelson, Mr. Johannesen stated that he while he would address the matter with his client; he had questions as to how such would apply. Clarification was given by Griswold Nelson as to the legal opinion being directed to the permitting process of the Inland Wetlands Agency.
Questions were posed regarding the alternatives shown as relating to the buildable area including siting the single family residence and septic system lower on the site. Mr. McGowan stated that the plans as provided showed the current septic site located on the steepest part of the slope and pointed out other issues that he saw with in the plans provided. Mr. McGowan addressed the buildable area issue relating to the interpretation of Section 4.4 of the Zoning regulations as “the Commission may impose such conditions that most closely conform to the buildable areas requirements”. Mr. McGowan stated that the commission’s engineer could and should be involved in the process of considering alternatives.
Mrs. Kearns raised questions and concerns regarding the location of the house, the elevations in the immediate area of the house and the design as shown with steep elevations in close proximity to the back of the house.
In response to other concerns raised regarding impact to downhill neighbors, Mr. Johannesen suggested that it was not the responsibility of the applicant to fix existing drainage issues. In response, Mr. Hare suggested that it might be better considered as a way to “reduce the risk” of future issues. Discussion ensued as to the impact of tree removal and other site activities between the downhill neighbors in the audience (Gwazdauskas and Griffin)
Don Bardot (Pine Street) addressed the removal of rocks and trees on the site in recent years and those activities being the source of problems to downhill neighbors in terms of washout
In response to questions from Mr. Hare as to the record of the impact of past activities, Griswold Nelson addressed issues addressed over the several past years by the Land Use office. Discussion ensued as to the amount and type of activities on the site in past years. Mr. Johannesen and staff and members of the audience (Bardot and Gwazdauskas) addressed known activities on the proposed driveway corridor” (“the road”) to access the upper site with equipment (backhoes) to test the site and as well as other associated activities by the property owner. Mr. Hare addressed concerns with “steps already taken to trigger the kind of erosion” being discussed. Mr. Hare suggested that the Commission needed to address the information being rendered regarding activities prior to the permitting process. Correspondence from the Land Use office to Mr. Hart addressing ongoing erosion and sedimentation issues was referenced to, with excerpts read into the record. Griswold Nelson addressed her inspections on the site, the knowledge of drainage structures installed that were not designed and the follow up on the matter as referenced in the correspondence.

In response to questions posed to Mr. McGowan as to the role of the Commission in the matter, Mr. McGowan addressed the role of the Inland wetlands and Zoning Enforcement Officer and the Commission to address the matter in terms of appropriate erosion and sedimentation controls prior to, during and after the permitting process.
Staff was directed to address the matter, including, if needed, correction and restoration of the driveway corridor, with the appropriate parties including the commission’s engineering consultants and the applicant’s consultant. The information, in the form of follow up correspondence, as to the findings and actions taken were to be made part of the special exception application hearing as well remain as a separate enforcement matter by the Land Use office.
Mr. Colbert re-addressed issues regarding the consideration of alternate building sites as provided for in the regulations, noting that the location of the septic system seemed to be the driving force in the site selection process. In response, Mr. Johannesen addressed other sites considered with the matter of marketability touched upon. Mr. Colbert questioned if the Commission could require other parts of the site to be perc tested for septic, Mr. McGowan stated that, as allowed by the regulations, (paragraph 4.6) “the Commission may allow by special exception, structures and septic systems outside of the buildable areas”. Other matters of consideration were touched upon by Mr. Johannesen, including stone walls and property lines. Note was made by Mr. Hare that a lot of septic could be pumped up hill in comparison to the cost of the driveway construction. Mr. Colbert re-addressed and questioned the areas of the site that were truly considered “off-limits” in terms of wetlands and other site constraints. In response to the concerns raised and the consideration of addressing alternative site, Mr. Johannesen was to address the matter with the property owner as to his thoughts.
Griswold Nelson addressed the role of the Land Use Office to address the cost of consulting fees for the matters being addressed and the right of the owner to make a decision regarding the issue. The correspondence was to be prepared by staff for review by the chairman.
Mr. LaPorta addressed the consideration of a smaller home as one method of reducing the environmental impact and the disturbance to the natural hillside. Questions as to other factors to consider were raised. In response, Mr. McGowan addressed the sites chosen for the percolations tests and other sites that might be considered including sites closer to the road. Suggesting that the driveway was more the factor in the disturbance and the risk of run-off and erosion than the house site, Mr. McGowan addressed severe grades and other factors to be considered to reduce disturbance. Mr. McGowan, quoting from the regulations (4.6), addressed the language that allow considerations of the house site and septic areas that most closely comply with the stated requirements for buildable area. Mr. McGowan stated that the language in Section 4.4, “in deciding on the special exception, the Commission may impose such conditions that most closely conform to the buildable area requirements”, gave the decision making part of the process to the Commission.
Timing of the application was discussed based on the questions raised as to the consideration of alternatives. The consideration and timing of a Commission site walk and appropriate protocol was discussed including the right of the public to be in attendance on a Commission site walk. The matter was to be revisited.
Motion made by Mrs. Kearns, seconded by Mr. LaPorta to continue the public hearing to the May 10th regularly scheduled meeting: unanimously approved.

ZONING MEETING:
1. APPLICATIONS FOR ZONING PERMITS.
#0847 - Anthony and Elizabeth Scott – Detached garage – 288 Great Hollow Road.
Permit approved April 7, 2011

#0848 – Jane Bevans – 12’ x 14’ deck – 79 Ford Hill Road. Permit approved April 7, 2011
There were no questions or concerns raised regarding zoning permit.

April 12th correspondence from town attorney Perley Grimes addressed to Chairman Pat Hare was made part of the record. There was discussion of the Grimes correspondence with agreement that the Commission was in basic agreement with the correspondence and the findings put forth. Correspondence was to be prepared for to be forwarded to Ms. Casey constituting the commission’s findings.

2. APPROVAL OF MINUTES. January regular, February and March special meetings.
Approval of the minutes was deferred. Mr. Colbert was to forward corrections to the January meeting to the Land Use office. It was agreed that hard copies of minutes would be mailed to all commission members before meetings.

3. NEW APPLICATIONS: None.

4. PENDING APPLICATIONS.
A. App#214 – Allied Engineering Associates applicant/Stephen Hart property owner – Special exception for the siting of a single family resident outside of the buildable area on a flag lot created by the combination of a pre-existing non-conforming lot (with frontage on Railroad Street) and a rear parcel (with no frontage) with driveway access from Railroad Street – Article IV- paragraph 4.4 - Assessors Map H03 – Block 3 – Lots 10 and 20 – Railroad Street.

5. OTHER BUSINESS PROPER TO COME BEFORE THE COMMISSION.
The commission discussed the issue of non-attendance by members, both regular and alternate members, at meetings and the issues that minimal attendance and quorums posed to applicants coming to the commission for timely action. It was agreed that reminder emails for all future meeting were to be sent out by the Land Use office with replies to be sent back to all as to who would and would not be in attendance.

6. CORRESPONDENCE AND COMMUNICATIONS RECEIVED.

PLANNING MEETING
Workshop meeting to include but not be limited to discussion of the following with commission members
1. Accessory apartments, 2. 1% funding for affordable housing 3. Condo conversions for large homes,
Commission discussion ensued as to the progress of various amendment changes with progress reports given as accessory apartments (Colbert and Kearns)

7. ADJOURNMENT.
Motion to adjourn the meeting at 9:50PM by action of the chairman; unanimously approved.

Respectfully submitted,

Karen Griswold Nelson