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May 9, 2006 Minutes

Public Hearing #1483
May 9, 2006

*****Draft Document – Subject to Commission Approval  *****

The Meeting was called to order at 7:05 P. M. in the Meeting Room of the East Windsor Town Hall, 11 Rye Street, Broad Brook, CT.  by Chairman Guiliano.


A quorum was established as three Regular Members (Gowdy, Guiliano, and Ouellette), and two Alternate Members (Kehoe, and Matthews) were present.  Chairman Guiliano noted Alternate Commissioners Kehoe and Matthews will sit in on everything this evening; Alternate Commissioner Matthews has been present for all the hearings on Southern Auto Sales and Alternate Commissioner Kehoe has missed only one hearing.    Also present were Town Planner Whitten, and Ex-Officio Member Selectman Filipone.


Town Planner Whitten noted request from Attorney T. Mark Barbieri for a 90 day extension for filing Subdivision approval for White Pines, LLC.   Their intent had been to file everything at once with the Re-Zone and the Subdivision approval was done before that.


Chairman Guiliano noted receipt of the following Applications:

        1)      Application of Sleepy’s Mattress Company for Modification of Approved                   Site Plan - to add 10’ x 32’ loading dock and 34’ x 35’ concrete pad for 3                      compactors - at 4 Craftsman Road.  [M-1 Zone; Map 15, Block 19, Lot  111A].

        2)      Application of Lawrence Tribble, Jr. for Modification of Approved Site                  Plan for Cornerhouse Restaurant, 75 South Main Street - to add an area for outside dining.  [TZ-5 Zone; Map 28, Block, Lot 1].

OLD BUSINESS:  Southern Auto Sales, Inc. – (1) Intervener Petition (Evidentiary Hearing); (2) Zone Change from A-1 to B-2 for property located on the south side of Phelps Road.  [Map 34, Block 21, Lot 12].  (Hearing closed 3/28/2006; deadline for decision 6/1/06):
Chairman Guiliano read the description of this Item of Business.  Appearing this evening with regard to the Evidentiary Hearing was G. Clifford Winn, the Intervener/Petitioner, and Attorney T. Mark Barbieri representing the Applicant, Southern Auto Sales.

Chairman Guiliano noted this is not a Public Hearing, only the Petitioner/Intervener, Mr. Winn, and the Applicant’s representative can speak to the issues addressed in the Petition.  Town Planner Whitten noted that a Notice of Intervention had been filed against Southern Auto Sales for a Zone Change from A-1 to B-2 on the south side of Phelps Road; the Petitioner is concerned with preservation of the agricultural property with a claim that the proposal for a re-zone with a more intense use could potentially harm the environment.   An Evidentiary Hearing was set for this evening; the Hearing is only to discuss the Petition, and any evidence to support or rebut the claim.  Only the Petitioner, the Applicant, and the Commissioners can take part in this Hearing.  No other evidence regarding the recent Re-Zone Application can be discussed.  Town Planner Whitten noted that Wetlands issues can not be addressed, as they fall under the purview of the Inland/Wetlands Commission rather than the Planning and Zoning Commission.

Attorney Barbieri indicated the Applicant agreed to have the Hearing to make their position known, but they object to the Commission’s acceptance of the Petition, and in acting on it.  Town Planner Whitten noted the reason Attorney Barbieri is bringing that up is the Petition was filed after the Public Hearing was closed; there is no case law as to how to really deal with that.  The Applicant is objecting to the Commission hearing this Petition.  

Commissioner Gowdy questioned that the Town Attorney had suggested the Commission hold this Hearing?   Town Planner Whitten replied affirmatively, noting they discussed this issue in length.   She further noted that there is some case law on a petition being filed after the public hearing was closed, but the issue was never taken up in court as the issue was dropped so the issue was never discussed as to it being proper procedure or not.  Town Planner Whitten indicated that Town Attorney Penney reviewed this situation with other attorneys, and she put the question out on the Planners List Serve; no one came back with any suggestions as to the proper procedure.  Commissioner Gowdy suggested that if the Petition was filed while the Public Hearing was open, and the Application was granted, the public would not have any input with regard to this issue anyway.

Attorney Barbieri suggested that if there is an injustice to anyone it’s the public.  The people who wrote the procedures didn’t think about at what stage these petitions might be heard. Attorney Barbieri suggested that once the public hearing is closed if I go up there and make a presentation I’m subjecting myself to an appeal, as is the Commission.   If we don’t do that we’re subjecting ourselves to an appeal from the Petitioner.   Ultimately, the public will not have a say, one way or the other, about what the Petitioner is saying.   If the Petitioner waited until the Site Plan came in most of his concerns are conservation issues.  Attorney Barbieri felt the whole Intervener thing was about the public coming in and giving their testimony.  

Commissioner Gowdy indicated he understood Attorney Barbieri’s position but thought that when the Petitioner makes his case no one else can have input.  Attorney Barbieri suggested the Applicant can’t rebut that.  Town Planner Whitten noted this is being done for the Applicant and the Intervener only because the Public Hearing is closed.  

Chairman Guiliano asked if the Intervener truly had additional opportunities to make his case?  Town Planner Whitten indicated the Intervener can intervene on any application.  She felt what Attorney Barbieri was suggesting was that when this proposal came in for a Site Plan or Special Use Permit that would be the time the Intervener can file his petition; that’s the time there is actually activity involved.  This is a legislative action.   A Re-Zone is one application.   If there is going to be detriment it’s going to be with the development, not with a piece of paper saying “x” or “y”.  Commissioner Gowdy suggested the Intervener can only do that if the Zone Change is approved, and that’s what he doesn’t want to happen.   It would be kind of foolish to tell him to wait and take the chance of having it approved.   Commissioner Gowdy indicated he didn’t follow that logic.  Attorney Barbieri reiterated that the Public Hearing is closed; he didn’t recall that Mr. Winn made any comment at the first hearings; Mr. Winn suggested he did.  Town Planner Whitten indicated the point is that the Public Hearing on the Zone Change is already closed; this proposal for the Evidentiary Hearing is the recommendation of the Town Attorney.

Attorney Barbieri reiterated he can’t respond on behalf of the Applicant as the Public Hearing is closed.  The Statutes are very specific as to what should come in after a Public Hearing yet on the Intervener status there is nothing.  

Chairman Guiliano polled the Commission as to their opinions with regard to hearing this Petition.  

Commissioner Matthews felt the Commission has an opinion from its attorney that we should hear this, although it’s unfortunate that the public can’t comment.  

Commissioner Kehoe felt if the Town Attorney suggested to follow through then the Commission should follow through.

Commissioner Tyler questioned why this wasn’t done before the Public Hearing was closed; there were three meetings held.   He indicated he didn’t like to do this as there is no ability for the public to respond.

Commissioner Ouellette indicated he agreed with Commissioner Tyler.

Commissioner Gowdy agreed with Town Attorney Penney; only the Petitioner and the Applicant can discuss this issue.

Chairman Guiliano agreed with Commissioners Ouellette and Tyler.   It’s unfortunate that the Intervener didn’t get the Petition in in time before the Public Hearing was closed.   Chairman Guiliano noted he also agreed with the Applicant; there can be no other public input.  The evidence brought forth at the hearing might bring out more input from the public which can’t be heard now.  

Town Planner Whitten noted the poll is a 3 to 3 tie.

Commissioner Ouellette questioned if the Commission must take action on this Hearing tonight?  Attorney Barbieri suggested the Applicant would grant an extension of  30 or 45 days.

Commissioner Gowdy felt the Commission was not setting precedent on procedure by this action.  Town Planner Whitten suggested this is procedural due process.   Chairman Guiliano suggested there were many opportunities for the Intervener to file the Petition; he felt the Commission would be setting precedent.  You are allowing evidence to be brought in after the Hearing is closed.  He questioned in what other situations would the Commission take more information after a Hearing was closed?  Never. We’ve never accepted anything after a Public Hearing was closed, except if we agreed prior to the closing to take something like a traffic study or input from staff.  We’ve never accepted anything after a Public Hearing was closed.  

Commissioner Kehoe questioned that procedurally, the Commission has never gotten to this point before?   Chairman Guiliano and Town Planner Whitten replied affirmatively.   Commissioner Kehoe requested clarification that the Town Attorney was suggesting this procedure?   Chairman Guiliano and Town Planner Whitten replied affirmatively.

Attorney Barbieri questioned if there are two opposing Statutes which are in conflict what rules do you go by, the one that has some case law behind it or the one that’s silent?  He suggested you have all kinds of stuff about these things, after the close of a Public Hearing, you can’t do it.  Attorney Barbieri suggested they are not against the Petition; it’s too bad it came in too late.

Town Planner Whitten noted the Commission still has another meeting this month at which this Hearing could be heard, and not require an extension.  If it’s the Commission’s preference she will review this issue further with the Town Attorney.

Commissioner Tyler suggested his hang up is doing something that doesn’t allow for the public to comment.   Chairman Guiliano agreed, noting the Zone Change Application was noticed as a Public Hearing.  He questioned the Intervener why this was submitted as it was?

G. Clifford Winn, (the Intervener/Petitioner), of 118 Phelps Road:  the first meeting on the Zone Change Application was the first week in April, and he thought the second meeting of the month was a working meeting and this wouldn’t be on the Agenda; he expected the Zone Change Application would still be on the Agenda and expected it to still be open.  It was noted the Zone Change Application was heard during the Commission’s Meetings of March 14th and March 28th (Closed); the Petition was received/accepted at the Commission’s April 11th Meeting.  Town Planner Whitten questioned Mr. Winn if he knew he could review the Commission’s agendas on the town website?   Mr. Winn suggested the website says the second meeting is a work session; he didn’t think this Application would be heard.  

Town Planner Whitten requested clarification that the Commission wanted her to review this hearing with Town Attorney Penney again.  Chairman Guiliano suggested he would rather not hear it; Commissioners Ouellette, Kehoe, and Matthews would rather wait until the next meeting; Commissioner Tyler didn’t object to waiting to hear the Town Attorney’s recommendation.  

Town Planner Whitten suggested we must rely on the Statutes, and they conflict constantly.  

MOTION: To TABLE the Notice of Intervener (Evidentiary Hearing) for Southern Auto Sales, Inc. for property located on the south side of         Phelps Road (Map 34, Block 21, Lot 12) until the Commission’s regularly scheduled meeting of May 23, 2006 at 7:00 P. M. in the          Town Hall Meeting Room, 11 Rye Street, Broad Brook, CT.

Gowdy moved/Ouellette seconded/
VOTE:   In Favor:       Guiliano/Kehoe/Matthews/Ouellette
                Opposed:        Gowdy

NEW BUSINESS:  KGS Realty, Inc.Site Plan Approval for 15,000 square foot addition to existing industrial building and construction of a new 27,404 square foot industrial building at 24 Newberry Road.  [M-1 Zone; Map 14, Block 18, Lot 6]. (Deadline for decision 6/15/06):

Chairman Guiliano read the description of this Item of Business.  Appearing to discuss this Application was Jay Ussery, of J. R. Russo & Associates.

Mr. Ussery suggested he is submitting a new Site Plan for this property located on the corner of Newberry and Thomson Road.  Seaco Door Company is the present tenant; they need additional space and are proposing the 15,000 square foot addition to the existing building.   The new building of 27,404 square feet will be a warehouse with office space which will be available for lease.  The site is served by public sewer and public water.

This Application was approved by the Inland/Wetlands Commission this month; storm drainage is a detention basin located in front of the new free-standing building.   The detention basin will take care of roof water, etc.; the basin will outlet to the east and flow southerly.   There will also be a new detention basin to the south of the Seaco Door Company which will outlet into the wetlands area on the south side of the parcel.   They are proposing a sub-surface drainage system which will be located under the pavement of the parking lot between the two buildings; this will outlet into the wetlands area as well.  

The current loading docks in back of the existing building will be eliminated; two new loading docks and a compactor pad will be constructed on the south west corner of the addition.   There will also be loading docks on the new building.

Commissioner Gowdy questioned that if there are any deficiencies with the old building is it true that it must be brought up to current building codes?  He felt the existing building isn’t in the best condition.   Mr. Ussery concurred; it has not been maintained well.  If there are any building code deficiencies those things will come up during the pre-construction meetings.

Mr. Ussery suggested there is a 22’ buffer between this parcel and Greenwoods Condominiums rather than the 100’ usually required between industrial and residential parcels.   He noted that Greenwoods got a Zone Change to a Special Development District (SDD) and acquired a variance for the 22’ distance.   There are already screening trees on the property line near the Williams’s property and Greenwoods.  

The total parcel contains 5.7 acres.  The allowable maximum building coverage is 35%, existing building coverage is 6.8%, maximum building coverage will be 23.8% after the improvements.  The allowable impervious coverage is 75%, existing impervious coverage is 18.2%, impervious coverage will be 35.3% with construction of the new building.  

Mr. Ussery indicated the required number of parking spaces is 26; they are providing 28.  There will be handicapped parking spaces in front of the new building.  Chairman Guiliano questioned what happens if the tenant for the new building is a 100 employee office building?   Mr. Ussery noted that was discussed; a small office wouldn’t work at this location as this is the only parking proposed for this project.  There is no additional land; because of the wetlands constraints and the drop of the land off the rear of the parcel this is could only really be a warehouse operation.  Mr. Ussery described the flow/direction of run off from the Industrial Park/Greenwoods Condominiums into the drainage system under Route 5.   Mr. Ussery noted there will be 3 wall mounted full cut off lights on the new building.  Signage has not been determined yet.

Chairman Guiliano questioned if Town Engineer Norton’s comments had been addressed?  Mr. Ussery replied that they had.  

Commissioner Matthews suggested they are proposing a lot of evergreen and a 20’ side yard as a buffer against Greenwoods; he felt out of respect for the condominium complex the buffer should be extended back.  Mr. Ussery noted that would cause the buffer to go into the wetlands area, which is already heavily vegetated.   He suggested the residents of Greenwoods can’t see this parcel; the closest unit is 300’ away.   Town Planner Whitten felt the trees wouldn’t survive in the wetlands.  

Commissioner Matthews noted he drove by the property.   If they could do something to mitigate the view of the old building and add trees on the south side of the building?  Mr. Ussery noted the required side yard is 20’; there is 40’ between the building and the property line.  Commissioner Matthews suggested the regulations require a buffer between residential and industrial properties; Mr. Ussery reiterated Greenwoods is no longer a residential zone.  Commissioner Matthews noted there is a residential property nearby, although it’s not maintained very well.  Mr. Ussery suggested they could add 10 - 12 evergreen along the Pearo property line.   

Commissioner Ouellette questioned what the detention pond in front of the new building would look like?  He is concerned with the visual impact from the street.  Mr. Ussery suggested it would be only a couple of feet deep; it’s more of a swale than a basin, maybe they could mow it.   Commissioner Tyler questioned if they would consider putting more subsurface drainage between the two buildings?  Mr. Ussery noted they wouldn’t be able to park on that.  

Commissioner Ouellette questioned the sight line for the existing driveway.   He noted it dips down closer to Route 5; is there proper sight line distance looking towards Route 5?  He questioned how high was the profile of the existing driveway?   Mr. Ussery suggested they aren’t changing the driveway; he didn’t feel there are any sight line issues.   He noted coming out of Thomson to Newberry there are no problems.  Commissioner Ouellette suggested he is concerned for the safety of the service vehicles; the road isn’t even 30’ wide here.  Mr. Ussery suggested they could increase the radius; the existing pavement is 26’.  He suggested the radius on the west side is wider, but there is a 30’ oak tree in the right-of-way on the east side.   Commissioner Ouellette suggested if safety is an issue that tree could be replaced with something else.  Mr. Ussery felt most of the traffic will go towards Route 5.  Commissioner Ouellette questioned if they were talking interstate tractor trailers using the driveway; he suggested a tractor trailer hasn’t a prayer of getting in there.  Mr. Ussery concurred they would need to use the whole road.    Commissioner Ouellette suggested if the Commission doesn’t take action on this proposal this evening they could seek the Town Engineer’s opinion on the serviceability of trucks for this entrance.

Commissioner Ouellette questioned if the Commission was willing to accept the detention basin in front of the building as proposed?  Town Planner Whitten suggested with a dry bottom it becomes grass; it would almost be better if it were a wet basin.  Commissioner Ouellette reiterated he was concerned with the visual impact; could it go elsewhere on the site?  Commissioner Tyler questioned if it needed to be that big?   Mr. Ussery noted it would be taking all the roof run off from the site.  Commissioner Ouellette questioned if the run off could go into the drainage system on Newberry Road?  Town Planner Whitten noted the proposed basin provides some infiltration.  Mr. Ussery indicated he will investigate changing the shape and alternate plantings.

MOTION: To CONTINUE the Application of KGS Realty, Inc. – Site Plan Approval for 15,000 square foot addition to existing industrial building and construction of a new 27,404 square foot industrial building at 24 Newberry Road.  [M-1 Zone; Map 14, Block 18, Lot 6]                 until the Commission’s regularly scheduled meeting of May 23, 2006 at 7:00 P. M. in the Town Hall Meeting Room, 11 Rye Street, Broad Brook, CT.

Gowdy moved/Kehoe seconded/VOTE:  In Favor:  Unanimous


Gowdy moved/Kehoe seconded/VOTE:  In Favor:  Unanimous

The Commission RECESSED at 8:15 P. M. and RECONVENED at 8:24 P. M.

NEW BUSINESS:  Sleepy’s Mattress Company – Modification of approved Site Plan – to add 10’ x 32’ loading dock and 34’ x 35’ concrete pad for 3 compactors – at 4 Craftsman Road.   [M-1 Zone; Map 15, Block 19, Lot 111A].  (Deadline for decision 7/13/06):

Chairman Guiliano read the description of this Item of Business.   Appearing to discuss this Application was Jay Ussery, of J. R. Russo & Associates.  

Mr. Ussery noted an addition was made to the original building approximately 1 1/2 years ago.   That addition contains office space, stairwell, and elevator in a mezzanine on the back side of the existing building, and a new entrance on the south side.   There is an emergency stairwell on the west side of the building as well.  This proposal is for a 32’ extension to the north side of the building which will include a concrete pad for 3 compactors for the old mattresses taken in on the sale of new mattresses.

Chairman Guiliano questioned if any parking is being eliminated?   Mr. Ussery replied negatively, noting there is employee parking in the front of the building which has been doubled in size; there is some parking on the east side of the driveway for the warehouse employees which was already blacktopped.  He noted there is no change in the amount of impervious coverage.  

Commissioner Ouellette noted the 50’ easement in favor of the Town on the plans; he questioned its purpose?   Mr. Ussery replied that all the lots in the Industrial Park carry such an easement but it wasn’t recorded in the Land Records and its purpose has been lost along the way.   He thought it might have been intended for greenspace between the buildings but after thorough investigation for the prior addition they were unable to find any further information.

MOTION TO APPROVE the application of Sleepy’s Mattress Company for Site Plan Modification to add a 34’ x 35’ concrete pad for 3 compactors, a new 10’ x 32’ concrete loading platform, and a new 10’ wide concrete loading platform at 4 Craftsman Road, on property zoned M-1, as shown on Assessor’s Map 15, Block 19, Lot 111A.  This approval is granted subject to conformance with the referenced plans (as may be modified by the Conditions)

        Referenced Plans:
Site Plan –prepared for Sleepy’s Mattress Company,  4 Craftsman Road, East Windsor, CT, Map 15, Blk 19, Lot111A,  prepared by  J.R. Russo & Associates, 1 Shoham Road, East Windsor, CT 06088. (860) 623-0569, Fax (860) 623-2485  Scale 1” = 40’, Revised dated 11-15-05, revised 4-6-06

-Conditions which must be met prior to signing of mylars:

1.      A paper copy of the final approved plans (revisions included) shall be submitted to the Town Planner for review and comment prior to the submission of final plans.

2.      All final plans submitted for signature shall require the seal and live signature of the appropriate professional(s) responsible for preparation of the plans.  

3.      The conditions of this approval shall be binding upon the applicant, land owners, and their successors and assigns.  A copy of this approval motion shall be filed in the land records prior to the signing of the final plans.

Conditions which must be met prior to the issuance of any permits:

4.      One full set of final mylars, with any required revisions incorporated on the sheets shall be submitted for signature of the Commission. Set shall be filed in the Planning and Zoning Department.

5.      A cash (escrow) or passbook bond (made out to the applicant AND the Town of East Windsor) shall be submitted for sedimentation and erosion control maintenance and site restoration during the construction of the project.  Any funds that may be withdrawn by the Town for such maintenance or restoration shall be replaced within five (5) days or this permit shall be rendered null and void. The applicant's engineer shall submit an estimated cost of the E & S controls to the Town Engineer.  The amount of said bond shall be determined by the Town Engineer.

6.      A zoning permit shall be obtained prior to the commencement of any site work

Conditions which must be met prior to certificates of compliance:

7       Final grading and seeding shall be in place or a bond for the unfinished work   submitted.

8       Final as-built survey showing all structures, pins, driveways and final floor elevations as well as spot grades shall be submitted.

9       All public health and safety components of the project must be satisfactorily completed prior to occupancy. In cases where all of these components have been completed, the Zoning Official may issue a Certificate of Zoning Compliance provided a suitable bond is retained for any remaining site work.  

General Conditions:

10      In accordance with Section 13.5.4 of the Zoning Regulations, any approval of a site plan application shall commence the construction of buildings within one year from the date of approval and complete all improvements within five years of the date of approval, otherwise the approval shall become null and void, unless an extension is granted by the Commission.

11      This project shall be constructed and maintained in accordance with the filed plans.  Minor modifications to the approved plans that result in lesser impacts may be allowed subject to staff review and approval.

12      Any modifications to the proposed drainage or grading for the site plan is subject to the approval of the town engineer.

13      Additional erosion control measures are to be installed as directed by town staff if field conditions necessitate.

14      By acceptance of this approval and conditions, the applicant, owner and/or their successors and assigns acknowledge the right of Town staff to periodically enter upon the subject property for the purpose of determining compliance with the terms of this approval

15      All landscaping shall be maintained.

Gowdy moved/Ouellette seconded/VOTE:  In Favor:   Unanimous

BUSINESS MEETING (1)  Discussion: Request from Historic District commission for Regulation Amendments.

Appearing to discuss this proposal was Barbara Smiegel, Chairwoman of the Historical Commission.  She noted the Historical Commission had asked that she submit these draft regulations to the Planning and Zoning Commission because of the ongoing regulation review/revisions.  She further noted the Historical Commission, the Land Preservation Commission, and the River Commission met with the State Archeologist, who provided the information submitted.  She suggested the Historical Commission isn’t proposing how the regulations should be written, or where this information should fit in.  Ms. Smiegel suggested these regulations are a way to protect cultural and natural resources and farmland and are a way to get open space.

Ms. Smiegel cited problems across the state regarding protection/preservation of historic properties.  She noted there are 267 properties in East Windsor of architectural and cultural significance; there is currently no protection with regard to buffers, etc.  Discussion followed regarding how the PZC and Historical Commission can work towards property preservation, how a property under consideration for development is identified as having architectural/historical significance, who is the person/entity responsible for that identification, who is the point person for advisement of proposed development and who is advisement made to, and the timeframe involved to work out resolutions for preservation prior to demolition.   

Town Planner Whitten noted that the timeframe is critical; the Planning and Zoning Commission must accept an application within a Statutory timeframe.   She questioned how information regarding historical significance could be given to the developer?  What happens if the development occurs on a property adjacent to an historic property?  

Discussion continued regarding rights of the property owner vs. preservation.

Chairman Guiliano noted the Commission will take this information under consideration as it continues to revise the regulations.

BUSINESS MEETING/(2)  Correspondence:

See information in Commissioner’s packet.

BUSINESS MEETING/(3)  Staff Reports:    None.

APPROVAL OF MINUTES:  April 11, 2006:

MOTION: To APPROVE the Minutes of Public Hearing #1481 dated April 11, 2006 as written.
Ouellette moved/Kehoe seconded/VOTE:  In Favor:   Unanimous


MOTION: To ADJOURN this Meeting at 9:15 P. M.

Gowdy moved/Ouellette seconded/VOTE:  Unanimous

Respectfully submitted,

Peg Hoffman, Planning and Zoning Commission Recording Secretary