Zoning Board of Appeals

CITY OF NORWICH ZONING BOARD OF APPEALS APRIL 9, 2013 Meeting Minutes The regular meeting of the City of Norwich Zoning Board of Appeals was called to order at 7:00 p.m. Roll call was taken and it was determined that a quorum was present. PRESENT: Marc Benjamin, Chairman Dorothy Travers Paul Kramarewicz Henry Olender Joe East – Alternate Raymond Dussault-Alternate ABSENT: Joseph Jacaruso, Co-Chairman Peter Cuprak – Alternate ALSO PRESENT: Tianne Phoenix Curtis, Zoning Enforcement Officer Linda Lee Smith, Recording Secretary Attorney Michael Zizka, Counsel Marc Benjamin had received a note from Joe Jacaruso stating he had surgery and would return for the May meeting. E. COMMUNICATIONS - None F. ACCEPTANCE OF MINUTES Upon motion by Joe East, second by Marc Benjamin, it was voted unanimously to postpone acceptance of the minutes of the March 12, 2013 regular meeting until an official draft with corrections has been prepared. Marc Benjamin concurred with Joe East. Motion was made by Paul Kramarewicz, second by Dorothy Travers to take agenda items out of order; given the amount of speakers for V#13-03 St. Vincent de Paul Place. Action would be taken as follows: (I1) A#13-01; (H1-3) V#13-04, V#13-05 and V#13-06. G. OLD BUSINESS: 1. A#13-01 – Application of St. Vincent de Paul Place for property located at Clairmont Ave a.k.a. Map 102/Block 5/Lot 74. In accordance with Sec.19.1.2 Appeal of decision of ZEO. Marc Benjamin stated that at last months meeting all the testimony had been taken and the hearing was closed. No further testimony could be taken. Revised May 20, 2013 1 of 11 Motion was made by Ray Dussault, second by Marc Benjamin, to accept and open A#13-01 for discussion. Atty. Zizka clarified for the board the motion was to either approve or sustain the appeal. He stated that an affirmative vote would mean overturn the ZEO’s decision. Seated were Marc Benjamin, Dorothy Travers, Henry Olender, Paul Kramarewicz & Ray Dussault Ray Dussault clarified that RLUIPA provides for nondiscrimination of any religious applicant that comes before the board. It’s akin to any non-discriminated law or policy that would apply to ADA or any ethnic origin but it doesn’t provide any exceptions or accommodations. He stated you simply don’t discriminate because of an applicant’s religious organization. Ray Dussault stated the ZEO acted appropriately, was also gracious and patient with the soup kitchen. He couldn’t find any discrimination or any kind of intimidation or power play. St. Vincent’s was in violation, their time expired before it was resolved. There was no undue action against the soup kitchen with the ZEO’s decision. Mr. Dussault also stated that with previous discussion he hadn’t thought there would be any criminal action. Paul Kramarewicz concurred with Mr. Dussault that Ms. Curtis was doing her job and acted accordingly. Marc Benjamin stated for the record that two letters submitted in evidence from A#13-01 were simply advising St. Vincent de Paul’s their temporary occupancy had expired. They were also denied special permit from the Commission on the City Plan (CCP). Marc Benjamin stated that because of the typographical errors, it’s not a reason to overturn the ZEO’s decision and it wasn’t a blatant mistake. He also stated the applicant was aware of the violation. The other point the applicant is contesting is that the ZEO should have considered RLUIPA in their decision. Marc Benjamin stated it was clearly explained to the board that the ZEO doesn’t have the power to do it. Marc Benjamin stated as Ray Dussault had pointed out there was some concern about possible fines and jail time. Marc Benjamin stated nowhere in the letters was it stated. The basic facts on the letter submitted stated St. Vincent’s didn’t receive the special permit, the ZEO couldn’t consider RLUIPA and their temporary permit expired. Marc Benjamin stated he thought the ZEO acted within her powers accordingly and the only thing was to uphold the ZEO’s decision. Ray Dussault thought that the ZEO took a posture that was fair and the least overbearing. The ZEO kept St. Vincent’s notified of their status at that location. Mr. Dussault stated he didn’t see any discrimination, criminal or civil fine actions by the ZEO. Revised May 20, 2013 Page 2 of 11 Marc Benjamin asked for a vote and explained to accept a yes vote would be yes to overturn the ZEO’s letter. Motion was made to not overturn, but to UPHOLD the ZEO’s decision, unanimous 0-5 Appeal FAILED. H. New Business: 1. V#13-04 – Application of Yorkshire Properties, Inc. for property located at 183-187 Central Ave Map 94/Block 2/Lot 39 in a Multifamily (MF) zoning district. In accordance with sec.8.3 permitted use and Sec.15.1.3&4 16 off-street parking spaces required request reduction to 7 to permit the conversion of approximately 936 sq. ft to professional office, retail or customer service use. Seated were Marc Benjamin, Dorothy Travers, Henry Olender, Paul Kramarewicz & Joe East Tianne Curtis entered into the record exhibits “A-I”. Richard O’Keefe, property owner of Yorkshire Properties, 185 Central Avenue presented. He has a perspective tenant for the first floor and classified as mixed use, with office space with an option for retail on the first floor which has been in a commercial zone and now it’s considered multifamily. He would need relief on the parking ordinance because they could never comply with the parking regulations. It’s more of a curbside parking for this new financial services client. There are seven available spaces in the back for this business but current zoning requires sixteen, and he’s asking for reduction to seven spaces. Their clients would be coming for a brief appointment. There is a drawing of the building and parking spaces included with their packets. It does show nine spaces with two spaces reserved for the 2 single family homes. Marc Benjamin questioned if he was only requesting a variance to reduce the parking spaces. He asked Tianne Curtis if the use variance had to be referred to CCP. Tianne Curtis stated yes it had to be forwarded to the CCP for next Tuesday’s meeting because it’s in a residential zone, it’s pre-existing and non- conforming and for commercial use. David Ehenne, Los Maestros Group Inc. gave a brief presentation. He stated they would have clients come for 15-20 minute appointments for financial services which would include tax preparation, money transfers and a retail business. Marc Benjamin asked if it would be mostly be tax preparation which would be seasonal. Mr. Ehenne stated yes and in the off season they could also do professional, retail service including money transfers similar to Western Union wire transfers. Joe East questioned if the sixteen parking spaces included the residential parking? Tianne Curtis stated yes he has the single family and the apartment’s upstairs, also additional space for the bar which they are still entitled to that Revised May 20, 2013 Page 3 of 11 space and needs to be accounted for. Multiple uses are listed on the application mf zone tenant wants a more of an umbrella of services to include customer service/professional service include professional office with the commercial use within the MF zone. Henock Petit-Homme, 128 Oakridge St. spoke in support of Los Maestros Group Inc. and in favor of this variance. He stated it would be valuable for the community because they provide services to speak different languages including Spanish, French and Creole. This translation service would keep people in Norwich as opposed to traveling to NY. Marc Benjamin stated they needed to continue the public hearing to next month to receive advisory opinion from CCP. All were in favor to forward the application to CCP for a use variance advisory opinion. 2. V#13-05 – Application of Boundaries, LLC for property located at 187 West Town St. Map 58/Block 1/Lot 42 in a General Commercial (GC) zoning district. In accordance with Sec. 12.1 10’ side yard required, request reduction to 3.84’ for the construction of a shed roof structure attached to building. Seated were Marc Benjamin, Dorothy Travers, Henry Olender, Paul Kramarewicz & Raymond Dussault Tianne Curtis entered into the record exhibits “A-.H”. Ray Dussault was in favor of taking the testimony for applications V#13-05 and V#13-06 together because they are owned by the same person and Demian Sorrentino, from Boundaries LLC would be presenting both. Demian Sorrentino of Boundaries, LLC, 179 Pachaug Rd. Griswold presented for Mr. Donner. He handed in Abutters Certificates on both properties. Mr. Sorrentino explained that Mr. Donner, of Donner Photography has housed the property since 1982. He has 60 employees working in different states, 20 employees work locally. Mr. Donner wanted to build a 12’x24’ shed roof with 4x4 pillars to accommodate and cover the photographer’s vehicle doors for loading their vehicles and a covering for the picnic table area for the employees. He constructed it without a permit. It’s a non-conforming, corner lot, and he’s asking to reduce the side yard from 10’ to 3.84’ and the northeast corner is about 71/2’ off the property line. The 12’ x 24’ shed roof doesn’t extend any further towards the hotel than the exit stairway. The new construction is a little closer to the property line. 3. V#13-06 – Application of Boundaries, LLC for property located at 3 Huntington Ave. Map 58/Block 1/Lot 40 in a Residential R20 zoning district. In accordance with Sec.12.1 100’ lot width required; request reduction to 50.84’; Sec. 12.1 20,000 sq ft lot area required; request reduction to 6,800 sq ft lot area. Revised May 20, 2013 Page 4 of 11 Seated were Marc Benjamin, Dorothy Travers, Henry Olender, Paul Kramarewicz & Raymond Dussault Tianne Curtis entered into the record exhibits “A-H”. Demian Sorrentino of Boundaries LLC, 179 Pachaug Rd Griswold presented. Mr. Sorrentino explained to the ZBA that Mr. Donner is the same owner as the adjacent property where the roof overhangs and protrudes onto 3 Huntington Ave. Mr. Sorrentino explained that 1 and 3 Huntington Ave properties had been combined, there were two houses, one was demolished in 2012, and presently has one house known as 3 Huntington Ave. The reason for this variance is to move the common property line 21’ northeast to reduce the minimum lot area from 20,000 sq ft to 6800 sq ft. Mr. Sorrentino stated the lot is non-conforming. The required width is 100’, it’s currently at 72’ and he wants to decrease it to 50.84’. Both 187 West Town St., and 3 Huntington Ave are owned separately by Mr. Donner. There was a question if the 3 Huntington Ave and 187 West Town St. could be combined. Mr. Sorrentino said he didn’t believe so because one property is located in GC zone and the other is residential zone or that Mr. Donner would want to combine them. Marc Benjamin asked about Mr. Donner’s hardship on V#13-05 and why he had to go to the 3.84’ from the property line. Mr. Sorrentino said that it was to accommodate the picnic table which was in line with the stairway. Marc Benjamin stated that it would have been easier to understand it if it came out in line with the house and not the staircase. Marc Benjamin stated the ZBA doesn’t like to increase the non-conformity. He asked if they eliminated 4’, taking it back to 7.5’, would they be able to do the handrails for supports? Mr. Sorrentino said yes it would be a reasonable modification. Raymond Dussault asked if there was a reason why he didn’t apply for a permit? Mr. Sorrentino said no but when he was informed he did stop and came in and applied for the appropriate permits, including this variance. Joe East asked if a zoning permit would be needed for a retractable awning? Tianne Curtis stated if it was a retractable awning without any supports to the ground a zoning permit would not be necessary. Mr. Sorrentino stated that Mr. Donner would like something a little nicer than a retractable awning. There being no other speakers, the public hearing was closed. I. DISCUSSION/DECISION ON APPLICATIONS 1. V#13-05 – Application of Boundaries, LLC for property located at 187 West Town St. Map 58/Block 1/Lot 42 in a General Commercial (GC) zoning district. In accordance with Sec. 12.1 10’ side yard required, request Revised May 20, 2013 Page 5 of 11 reduction to 3.84’ for the construction of a shed roof structure attached to building. Seated were Marc Benjamin, Dorothy Travers, Henry Olender, Paul Kramarewicz & Raymond Dussault Motion was made by Raymond Dussault, second by Marc Benjamin to approve V#13-05 for discussion. Mr. Dussault stated Mr. Donner is a well established businessman with a good operation and he wants to continue providing job opportunities in Norwich. He owns both properties, and although he didn’t pull their permit he has a good operation in Norwich. Paul Kramarewicz stated that it was pre-existing and non-conforming, it’s on the corner of West Town St. and Huntington Ave., and the business will be in Norwich a long time. Mr. Dussault stated there is an improvement to the building; the structure is well off the road; it doesn’t interfere with parking; there are no abutters with any problems; and it’s a good use for the business. He favors approval. Marc Benjamin asked if they should eliminate the 4’ and take it back to the 7.5’. Mr. Dussault said the hardship is the non-conformity. He stated as long as it’s structurally sound, meets the Building Departments requirements, and he didn’t want to put their employees out in the rain, and if there were no objections he didn’t have any problem with the 4’. Upon motion by Raymond Dussault, second by Marc Benjamin the Commission voted unanimously to APPROVE V#13-05. 2. V#13-06 – Application of Boundaries, LLC for property located at 3 Huntington Ave. Map 58/Block 1/Lot 40 in a Residential R20 zoning district. In accordance with Sec.12.1 100’ lot width required; request reduction to 50.84’; Sec. 12.1 20,000 sq ft lot area required; request reduction to 6,800 sq ft lot area. Seated were Marc Benjamin, Dorothy Travers, Henry Olender, Paul Kramarewicz & Raymond Dussault Upon motion by Ray Dussault, second by Marc Benjamin motion was made to open for discussion. Ray Dussault stated that he’s had his business in Norwich and it’s an improvement. The abutters had no problems with it. He favored supporting it. Marc Benjamin stated the difference between the 8200 sq ft and 6400 sq. ft was .03 acres and wouldn’t make any difference to future buyers, and it’s an improvement to the property. Revised May 20, 2013 Page 6 of 11 Upon motion by Ray Dussault, second by Marc Benjamin the Commission voted unanimously to APPROVE V#13-06. 3. V#13-03 – Application of St. Vincent de Paul Place for property located at Clairmont Ave a.k.a. Map 102/Block 5/Lot 74 in a Multifamily (MF) zoning district. In accordance with Sec.8.3 et seq. use variance to permit the operation of a food pantry and soup kitchen. Seated were Marc Benjamin, Dorothy Travers, Henry Olender, Paul Kramarewicz & Joe East Attorney Smith of Robinson & Cole (a.k.a. “applicant”) handed out and read excerpts from Exhibit “BBB” entitled St. Vincent de Paul’s Place Appeal for use variance presentation dated April 9, 2013. Atty. Smith stated that St. Vincent’s would not offer overnight accommodations and they would like to request all the services listed in the presentation, but if all the services couldn’t be supplied they would take some of them. Mr. Russell, financial officer of the diocese gave a brief overview of Exhibit “ZZ” which states alternate locations for St. Vincent’s de Paul’s Place. He stated they have been looking for a place since 2009 when 10 Railroad Ave. got too expensive and too small. He stated most of the potential sites had problems. The only two sites that would be appropriate would be St. Joseph’s and the former Soup Kitchen. Mr. Russell stated the problems were they weren’t zoned correctly for their use, didn’t have kitchens or bathrooms, 40 parking spaces and within walking distance and bus lines. Marc Benjamin stated the ZBA was there to discuss the use of the property. Marc Benjamin stated St. Vincent’s assignment was to find out how many square feet they needed. Marc Benjamin stated the ZBA didn’t want to focus on the need or where it should be located. Ray Dussault said that of the list of submitted sites there were only two or three potential sites that may be able to be used. Mr. Dussault stated whatever the costs are the committee can’t consider it because the ZBA has to consider the use, hardship, and consistency with the regulations. Attorney Smith said that they are using 6600 sq ft per floor basement and first floor. He stated In last months meeting Exhibit “BB”, tab 14 referenced the vehicular traffic stating it would be less than when it was a school. Attorney Smith read into the record Exhibit “CCC” which was supporting documentation of the service area of the 280 petitions that were signed for St. Vincent’s clients. He also read into the record Exhibit “BBB” tab 5, letter from Claire Silva in support of St. Vincent’s. Attorney Evan Seeman of Robinson & Cole gave a brief overview on RLUIPA to the commission and submitted “Exhibit BBB” tab 6. Revised May 20, 2013 Page 7 of 11 Atty. Seeman stated it would be a violation on the part of the City to require modification of the religious behavior as the operation of the soup kitchen is a religious practice. Ray Dussault stated if the school would still be used as a school and the church used as a church, then the committee wouldn’t be asking for a modification or change of use. For a change of use there needs to be a hardship. Mr. Dussault wasn’t sure what their hardship was. If denied would the church be asking to modify their behavior. Atty. Seeman stated that they are not abandoning their school use but that is not what they’re seeking right now. The operation of a soup kitchen is a religious mission and a denial of this request would modify their religious behavior. There are no other sites. Marc Benjamin asked when it was a church and school previously was there a food pantry? Atty. Smith stated that people were fed in 1930-1940. Jillian Corbin said it wasn’t a formal pantry. Marc Benjamin stated for the record St. Vincent’s operates and performs religious exercise. They’ve looked for other places and that requires extensive renovations. If a place is too expensive then could it be considered a hardship? If this variance is denied would they have to stop their operation and halt their religious practice and could they continue as a church. Atty. Zizka stated he shared Mr. East’s concern relative to the hypothetical use of raising livestock in the upper level(s) of the school. If the diocese were to define this part of their religious practice, would it be permissible as regulated by RLUIPA? How would the Board and staff distinguish the different “basket” of uses? Atty. Zizka questioned why the applicant is claiming a violation of RLUIPA if the local regulations did not present a problem. Atty. Seeman responded the case was brought in response to the issuance of the notice of violation by Tianne Curtis as ZEO. Law permits them to apply for and pursue the appeal of the notice as well as the use variance simultaneously. Ray Dussault stated the standard in Norwich are the churches and schools are providing meals an estimate of two days a week; and by Atty. Smith’s argument is that every church with a kitchen providing meals could become a soup kitchen and operate 7 days a week. Attorney Smith stated they have been providing more than two days a week for meals at St. Vincent’s. Their hardship is the property and it’s appropriate for this particular use. Ray Dussault asked if it’s appropriate to have it remain a school & church. Atty. Smith said feeding the poor is a mission of the church and St. Vincent de Paul’s. It is their religious use and it shouldn’t be modified. Ray Dussault continued to ask what was their change of use. Attorney Smith stated it’s appropriate at this location. Ray Dussault said he thought St. Vincent’s was asking for change of use and what was the hardship. Revised May 20, 2013 Page 8 of 11 Atty. Smith said that if you limit St. Vincent’s to only church and school that’s all they would be allowed to do, and that would be a problem with RLUIPA. Atty. Zizka agreed with Atty. Smith, and stated when they were at 10 Railroad Ave.; the building had a kitchen and was in a proper zone for eleemosynary uses. Atty. Smith also stated it needed to be moved and with a kitchen. Their hardship is because the people are within ½ mile or don’t own cars and they need to walk. Atty. Smith was asking even if it could be approved with limited conditions including protecting the neighborhood. Marc Benjamin asked is the hardship the fact that St. Vincent’s is a religious institution, and they lost their place of business, and had to go someplace else; and St. Joseph’s church also being religious and it fits the need? He asked is that your hardship? Atty. Smith responded the current function and prior function are both uses by the church; therefore a denial of the use variance would constitute a violation of RLUIPA by the ZBA. Attorney Smith stated the hardship is the building serves St. Vincent’s and it belongs to the same religious organization. Marc Benjamin asked if the soup kitchen could have gone to St. Pat’s cathedral if they had a kitchen. Attorney Smith stated St. Vincent’s is centrally located and if the variance is granted, the soup kitchen could only operate as long as it’s a religious organization, and couldn’t operate if it’s changed. Recess at 9:13 p.m. Attorney Zizka stated for the record that the applicant has asked Paul Kramarewicz to voluntarily recuse himself and Mr. Kramarewicz agreed to for the remainder of the hearing. Marc Benjamin stated Raymond Dussault will be a voting member. Marc Benjamin stated they will be taking testimony from people who have signed up. He established a limit of 3 minutes per person. The ZBA’s intention is to close the hearing tonight. Marc Benjamin stated Atty. Smith has forwarded a considerable amount of new information which the ZBA members will need to review. If the hearing is closed no further testimony will be accepted. Marc Benjamin asked the people speaking to please keep comments applicable to the appeal; not the necessity of the soup kitchen but rather how it fits in with the zoning regulations and within the neighborhood. Speaking was: 1. Robert Groner, 89 Lawler Lane, spoke in favor. 2. Dr. Jeremiah Lowney, 213 West Town St., spoke in favor. 3. Michael Wagner, 24 Hunt Street spoke in favor. 4. Deacon Tom Casey, 67 Kennedy Dr. Colchester spoke in favor. Revised May 20, 2013 Page 9 of 11 5. Reverend Sara Ofner-Seals, 283 Broadway minister at Park Congregation spoke in favor. 6. Father Nicholas Dellermann, 33 Convent Ave. spoke in favor. 7. James Small, 87 Cliff St., spoke in opposition and submitted correspondence entered as Exhibit “DDD.” 8. Lee-Ann Gomes, 39 Tanglewood Drive spoke in favor. 9. Sarah Scepanski, 85 Cliff St., spoke in opposition and submitted correspondence entered as Exhibit “EEE.” 10. Leonard Mathews, 35 Park St., spoke in favor. 11. Robert Peterson, 89 Broad St., spoke in favor. 12. Judith Hersey, 120 Cliff St., spoke in favor. 13. Dr. Anthony Alessi, 269 Broadway spoke in favor. 14. James Thomas, 6 Ford Ave., spoke in favor. 15. Patrice Bernier, 69 Quarto Rd, spoke in favor. 16. Cathleen Demulling, 313 Canterbury Tpk, spoke in favor. 17. Susan Bogan, 65 Otis St., spoke in favor. 18. Mark Gagne, 82 Cliff St., spoke in opposition and submitted correspondence entered as Exhibit “FFF” and correspondence of Brian Kobylarz as Exhibit “GGG”. 19. Terrull Garrison, 6 Robbins Ct, spoke in opposition and submitted correspondence entered as Exhibit “HHH”. 20. Kaitlyn Occhionero, 23 Caulkins Rd. spoke in favor. 21. Lucia Leise, 1 Tunnel Hill Rd., Lisbon spoke in opposition. Marc Benjamin asked Atty. Zizka if he had anything else to state to the board given the new testimony. Atty. Zizka had nothing further from last months meeting. Marc Benjamin asked Tianne Curtis to enter all exhibits to the record. Tianne Curtis entered Exhibits “A – III” Revised May 20, 2013 Page 10 of 11 Attorney Smith submitted a property value analysis, performed by Michael Blair of Stonington, entered as Exhibit “JJJ”. Atty. Smith stated the decline of values is throughout the country. St. Vincent’s proposed to increase the number of volunteers helping to resolve the littering issue. Atty. Smith stated the religious uses of the property, inclusive of all buildings, are legitimate uses for St. Vincent’s; and that RLUIPA’s purpose is to actively and proactively accommodate reasonable use of the property. Upon motion by Raymond Dussault, second by Joe East it was voted unanimously to close the public hearing. Upon motion by Marc Benjamin, second by Henry Olender it was voted unanimously to table the decision to next month. On a motion by Raymond Dussault, second by Marc Benjamin it was unanimously voted to adjourn at 10:39 pm. Respectfully submitted, Linda Lee Smith Recording Secretary Revised May 20, 2013 Page 11 of 11