Zoning Board of Appeals

CITY OF NORWICH ZONING BOARD OF APPEALS November 10, 2022 Regular Meeting Minutes Hybrid Meeting ZOOM & Room 335, City Hall, Norwich The regular meeting of the City of Norwich Zoning Board of Appeals was called to order at 7:07 p.m. Roll call was taken. PRESENT: Marc Benjamin, Chairman (ZOOM) David Martin Robert Phoenix Dorothy Travers (CALL IN) Gregory Schlough ABSENT: None OTHERS: Attorney Mark Block, Richard Shuck, Zoning Enforcement Officer, and Katherine Rose, Recording Secretary Marc Benjamin called the meeting to order at 7:00 p.m. Marc Benjamin stated all members would be voting on all matters. A. COMMUNICATIONS: None. B. ACCEPTANCE OF MINUTES: Robert Phoenix made a motion to accept the September 13, 2022 minutes. Gregory Schlough seconded. All voted in favor. The motion passed unanimously. C. OLD BUSINESS: None. D. NEW BUSINESS: 1. V# 22-07: 1-59 Forest View Drive (AKA 214 Vergason Ave Ext.); Request for Use Variance to ZR Sec. 4.1.1, Conformity Requirements; to permit use of the property for development of additional, previously approved dwelling units in in the existing condominium development within the Business Park Zone. Property of Forest Land Investment, LLC. Application of Forest Land Investment, LLC. Assessors Map # 034, Block # 001 Lots # 038 Richard Shuck read the legal notice for the application into the record as well as Exhibits A - J. A two minute recess was taken to allow Dorothy Travers to join the meeting by phone. Attorney Mark Block of 138 Main Street, Norwich presented a use variance on behalf of the applicant Forest Land Investment, LLC. Attorney Block explained that the applicant owned development rights for the remaining 24 potential units at Forest View Estates. Attorney Block noted on the site plan where the 24 units would be located on Ferguson Avenue. Attorney Block explained that the original development occurred in 2002 as a common interest community parcel, which at the time was part of the industrial park zone that allowed residential use up to a certain percentage within the park. Attorney Block continued that the zoning was changed after the approval of the Forest View Estates plan, which removed residential use as an approved use within the industrial zone. Attorney Block stated that at this time the applicant was prohibited to construct the 24 units due to zoning. Attorney Block stated the appeal for a use variance was based on several factors including that the business park zone restriction does not permit residential use and that the declaration of Forest View Estates stated that each unit is restricted to residential use as a single family residence which does not allow any non-profit or commercial uses within the units. Attorney Block explained this prevents the area from being developed for commercial purposes, which is permitted within the zone. Attorney Block stated the applicant’s claim is that this hardship is not self created. Attorney Block stated in reference to Zoning Regulations 7.10.1, the issue only impacts the applicant due to the residential limitations to the common interest community and 24 units. Attorney Block stated in regards to item 4 of the Zoning Regulations section 7.10.2, which allows a use variance in the case that the private property would be rendered valueless, the applicant had submitted an appraisal done on October 2, 2022 by a use appraisal company which states ‘the zoning regulation change made subsequent to the approval of the subject condominium complex but before the completion of all residential units has been rendered land earmarked for the final previously approved 24 units as valueless to the owner of the development rights.” Attorney Block stated that the variance would restore the underlined inherent value of the 24 units since the property only be developed for residential use. Attorney Block stated the applicant wished to use the property for its originally permitted use and if not able to, the property would remain a valueless open space. Attorney Mark Block reported that the CCP rejected the first application with a negative recommendation due to a determined reasonable development opportunity, however the appraisal was not submitted at that time. Attorney Block stated the CCP also provided a negative recommendation on the second application but he was unsure if the appraisal was consulted at that time. Gregory Schlough questioned what prevented the project from moving forward through the past two decades. Attorney Block stated that Forest Land Investments LLC was not the original developer and had purchased  the property around 2015. Gregory Schlough asked if the applicant or a condo association would be in control of the units. Attorney Block explained that the applicant can only build what is allowed by the declaration and that the owners of the proposed 24 units would become part of the Forest View condo association. Robert Phoenix questioned if the condo association was in essence as business as the unit owners are shareholders that are directed by a board. Attorney Block stated the Common Interest Ownership Act establishes that each condominium developer shall have an association that governs and manages a condominium project, which is not the same type of business that the declaration speaks to. Discussion ensued. Robert Phoenix stated his primary objection is that the applicant will be involved in the development but not the ultimate completed project, if the variance was approved. Robert Phoenix stated he was also concerned if the developer had approached any environmental authority to mitigate the encroachment into the 100 foot wetland that they would intend to build on. Attorney Block responded that no steps had been taken as no permission had yet been given to proceed with the project. David Martin asked if the applicant purchased the property with the knowledge of the zoning restrictions. Attorney Block responded he did not know the exact time that the zoning change occurred but believed it was a few years after the initial project approval. Attorney Block stated the applicant was aware of the zoning change but not the exact issue that it caused. David Martin stated he felt the hardship was somewhat self induced by not bringing it forward at the time of discovery or prior to the purchase. Robert Phoenix asked if the homeowner association sold the property to the applicant. Attorney Block responded he believed it was purchased out of foreclosure from the previous developer or directly from the bank. Richard Shuck clarified the issue was not the land itself but the privately owned development rights for the units that had not yet been built. Attorney Block added that the land is technically owned by the associated while the development rights are owned by the applicant. Discussion ensued. Robert Phoenix made a motion to close the public hearing at 7:39PM. Gregory Schlough seconded. All voted in favor. The motion passed unanimously. E. DISCUSSION AND POSSIBLE DECISIONS: 1. V# 22-07: 1-59 Forest View Drive (AKA 214 Vergason Ave Ext.); Request for Use Variance to ZR Sec. 4.1.1, Conformity Requirements; to permit use of the property for development of additional, previously approved dwelling units in in the existing condominium development within the Business Park Zone. Property of Forest Land Investment,  LLC. Application of Forest Land Investment, LLC. Assessors Map # 034, Block # 001 Lots # 038 Gregroy Schlough made a motion to approve the application. Robert Phoenix seconded. Gregory Schlough referred to the hardship presented as what was written on the application. Gregory Schlough stated he felt there were a few things in the application he didn’t feel he could agree with as well as feeling the board should follow the guidance of the two decisions made by the CCP. Gregory Schlough stated if the CCP had not received the appraisal to consider it would not be a fault of their own. Robert Phoenix agreed with Gregory Schlough especially in regards to the CCP decision. Robert Phoenix stated he felt the hardship appeared to be more of an investment situation and noted that financial hardships could not be considered by the board. David Martin stated as he understood the applicant purchased the development rights understanding the situation and that due diligence on the applicant’s part would have illuminated issues. Dorothoy Travers agreed. Marc Benjamin asked for clarification if Gregory Schlough and Robert Phoenix, who made the motion, if they did not agree with the hardship presented or if they felt it was inadequate. Robert Phoenix stated he did not agree with the language used in the hardship. Richard Shuck noted that in regards to comments made during the public hearing, that he and ? had received the appraisal well before the CCP meeting and that members could seek further information of if the CCP members had consulted the appraisal during their decision making if they wished to. Chairman Marc Benjamin stated that the board could vote on the application if they felt it stood on its own merits regardless of that information. Gregory Schlough, Robert Phoenix, David Martin, Dorothy Travers and Marc Benjamin voted in opposition. The motion failed unanimously. F. STAFF UPDATES: None. G. ADJOURNMENT: A motion was made by Robert Phoenix to adjourn at 7:52 PM. Greg seconded. All voted in favor. The motion passed unanimously. Respectfully submitted, Katherine Rose Recording Secretary