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PLANNING COMMISSION MINUTES
DECEMBER 28, 2006
SPECIAL MEETING
I. CALL TO ORDER
Chairman John Loomis called the special meeting of the Planning Commission to order at approximately 7:00 p.m. in the Main Meeting Room of the Simsbury Town Offices. The following members were present: Secretary Ernest Gardow, Susan Bednarcyk, Gregory Piecuch, Ferguson Jansen, Charles Houlihan, Mark Drake and Brad Mead. Also in attendance was Hiram Peck, Director of Community Planning & Development and Howard Beach, Conservation/Inland Wetlands and Zoning Compliance Officer. Commissioner Mead left the meeting at approximately 8:45 p.m.
Chairman Loomis noted this special meeting was requested by 3 regular members: Greg Piecuch, Charles Houlihan and Ferguson Jansen. Their meeting notice was received and posted on December 26th and tonight’s agenda includes everything in substance on their notice, other than Item III regarding the alleged violations of the Freedom of Information (FOI) Act. He requested Town Attorney Robert DeCrescenzo to address the Commission regarding that missing item.
Attorney DeCrescenzo reviewed the facts leading up to the request for this special meeting. The 12/19 Special Meeting was scheduled for Room 106. That morning, the Chairman and Town Staff determined that the room would probably not be big enough to safely accommodate the public that was likely to attend given the agenda items that were to be taken up that evening. Once determined that an alternate meeting site could be obtained at the Simsbury Public Library, notices were posted at Room 106, and at various places throughout Town Hall, indicating the change. That evening, the start of the meeting was delayed until about 7:15 p.m. in order for the public to find their way to the new site. About 40 people attended the meeting. An issue has been raised by a citizen whether or not the act of moving the meeting after it had
been posted for Room 106 violated the notice requirements of the Freedom of Information Act.
In preparation for tonight’s meeting, Attorney DeCrescenzo noted he read through the FOI act, pulled several relevant decisions of the FOI Commission on this issue, and consulted with Tom Hennick, Freedom of Information Commission Public Information Officer. Attorney DeCrescenzo noted there is no pending complaint before the FOI Commission, but only before the Planning Commission and the Town Clerk. He admitted he cannot, with 100% certainty, predict the outcome if this were to go before the FOI Commission. However, from his research and discussions, and in his best judgment, it is not likely that the FOI Commission would find these particular facts result in a violation of the FOI Act notice requirements. Commissioner Bednarcyk indicated she, too, spoke with an attorney at the FOI Commission and noted their similar
opinion to that of Tom Hennick. In addition, in the unlikely event that a violation were to be found, Attorney DeCrescenzo does not believe that the remedy imposed would not be to rescind the actions taken on 12/19, as was also evidenced in the reviewed cases. The factors the FOI Commission looks at include: how adequate was the notice; how prominently was it posted; how close by the new meeting space is; did anyone attend meeting; and whether there was an intent to deceive the public. Finally, neither the Planning Commission nor the Town Attorney has jurisdiction to find a violation of the FOI Act. Therefore, the actions taken on 12/19 are valid actions for this Commission unless some other agency with jurisdiction finds otherwise. Commissioner Piecuch confirmed in his opinion that Attorney DeCrescenzo’s view that the 8-24 referral on the Tariffville Green is not at risk and as of tonight’s meeting is a valid action of the Commission. Town Attorney has instructed the
Board of Selectmen (BOS) to take that referral as positive and act accordingly. Under Robert’s Rules, a Commissioner would have to make a motion to rescind or reconsider the actions and that motion would have to pass.
Attorney DeCrescenzo discussed and clarified with the Commission the specifics, according to Robert’s Rules, of how and in what order the motions should be raised, (i.e., motion to reconsider versus rescind). In response to Commissioner Houlihan, Attorney DeCrescenzo noted the meeting held on 12/19 was not an emergency meeting and so those requirements do not apply here (i.e., filing minutes within 72 hours). Chairman Loomis presented and distributed both a letter he submitted to the Town Clerk on 12/21, as well as an interim set of minutes for the 12/19 meeting submitted on the morning of December 22nd.
In light of the information presented by the Town Attorney, Commissioner Mead questioned whether this particular meeting should go forward. The intent of the special meeting was to question whether there was proper notice for public participation at the 12/19 meeting. At least for the moment, the 12/19 meeting is affirmed. This special meeting has been called, although legally, but with very little notice to the public. This would seem to be the wrong time to hold a meeting on the Special Areas topic, without the public’s ability to participate in the deliberation. Attorney DeCrescenzo confirmed this is a proper special meeting, the agenda items were raised properly, and it would be up to the Commission to determine whether they are addressed.
Commissioner Piecuch noted, in his opinion, that the FOI issue is secondary here and in a lot of ways is a distraction. He supported putting it on the agenda in the event Town Counsel found there was a problem. First and foremost, he wanted to assure the Tariffville Green referral went forward. He suggested it was more of an issue of timing, in that the proposed Plan draft is to be posted on 12/29 and that these issues need to be addressed prior to its release. Chairman Loomis confirmed that the publication and web site posting of the Plan have been postponed.
Commissioner Jansen noted his issue deals with how the proposed changes to the 12/12 draft were presented on the 19th and that Commissioners were not given time for prior review. Commissioner Bednarcyk expressed her extreme concern about discussing these matters tonight, at a time when many residents are away and that, for all appearances sake, it looks like this has been done to keep the public out of it. Commissioner Piecuch noted that if a motion is made and approved under Agenda Item III to rescind the actions taken on 12/19, further deliberations to reach a compromise do not have to occur this evening. In light of the public information sessions and the fact that this meeting is being televised, Commissioner Jansen feels comfortable that the public has not and would not be shortchanged. If possible,
Commissioner Jansen advocated for deliberating on a final version of the Plan tonight in order to keep on schedule for the release of the Plan.
Attorney DeCrescenzo confirmed for Commissioner Bednarcyk, a motion to adjourn could be presented and if recognized by the Chair, seconded, and approved, the meeting would be adjourned without addressing the remaining agenda items. However, according to Robert’s Rules, as referenced by Chairman Loomis, the motion would be debatable if it is posed while no question is pending.
Commissioner Bednarcyk motioned to adjourn the meeting at approximately 7:45 p.m.. Due to a lack of a second, the motion was voided.
II. APPOINTMENT OF ALTERNATES
None.
III. CONSIDERATION OF ITEM IV REQUESTED BY COMMISSIONERS JANSEN, PIECUCH, AND HOULIHAN IN ACCORDANCE WITH THE ATTACHED NOTICE TO CAROLYN KEILY DATED DECEMBER 26, 2006.
Secretary Gardow read the agenda item into the record to reconsider and/or rescind all action taken at the 12/19 meeting.
Commissioner Piecuch motioned to rescind the action of the Planning Commission at the 12/19 meeting with regard to the Special Areas Chapter of the Plan of Conservation and Development. The motion was seconded by Commissioner Jansen.
Commissioner Piecuch suggested it was in the best interest of the Commission and the town to support this motion. He urged its passage regardless of the Commissioners’ opinion regarding the Plan text. He cautioned against ending up with an embarrassing 3-3 deadlock come adoption time in March, making the Commission’s tireless efforts futile. He questioned why the Commission would want to issue a proposed plan to the BOS, the Capitol Regional Council of Governments (CRCOG), and the public when it does not have the support of a majority of its regular members. The issues need to be resolved before the draft Plan is issued. He confirmed for Commissioner Mead that he was speaking solely for himself and not for Commissioners Houlihan and Jansen.
Commissioner Houlihan expressed his 3 concerns of: 1) deadlock come adoption time; 2) inclusion of arbitrary caps and restrictions (which the Commission does not have the expertise to decide) and their ultimate negative effect on economic development, tax revenue, and ability to attract a creative design; and 3) the fact that the Southern Gateway is being targeted in a way unlike any other area in Town giving rise to a possible claim of discriminatory zoning. In his opinion, a common vision is shared by the Commissioners (i.e., open space and ridgeline preservation, traffic concerns, neighborhood impacts, varied design desire, etc.) and has been articulated in prose particularly well. He expressed his surprise upon hearing that the numbers had been reintroduced at the 12/19 meeting and the circumstances surrounding their
reintroduction.
Commissioner Jansen agreed with what both Commissioners Houlihan and Piecuch have said thus far. He expressed his faith in the role and wisdom of all of the town’s boards and commissions, and yet he also understands the Economic Development Commission’s challenges. He thought the 12/12 draft was done, agreed on, and good for the town and everyone. In his opinion, the Plan explains well enough the vision and desire for particular areas and potential creative opportunities would be lost by including the restrictions (i.e., square footages, mixed use percentages).
Commissioner Mead appreciated Commissioner Jansen’s position. However, for the record, he noted he supports the inclusion of the numbers in the text. He related his experience regarding his discussions with residents and their overwhelming desire for more restrictions for the Southern Gateway. If necessary to break the 3-3 deadlock, he suggested going to the town, either by referendum or some process, to understand what their real sense is on this.
Commissioner Bednarcyk indicated that it is not just about the commissions and boards, but rather about the residents of this town. She does not think the 12/19 decision should be rescinded. She noted for record that the Economic Development Commission voted, not unanimously, but actually 4-3 against the caps in Plan. She suggested retaining the language as it is, sending the draft to CRCOG, and then go to the public hearing to get the resident’s reactions. The 12/19 Plan is a definite guide for developers and residents and will avoid leaving the intended vision open to various interpretations.
Commissioner Drake noted that under the current regulations, a developer could apply for a special exception for this parcel, present whatever type of development they think appropriate, and then go through the Zoning process, including a public hearing. Under this alternative type of development, he sees the intent as merely trying to define what is appropriate and a clearer sense of what is preferred. If the metrics get in the way, then the property could just be left zoned as it is. He suggested tabling the motions to confer with Zoning about what metrics they would put in and find a way to avoid making it impossible for them to regulate.
Chairman Loomis referenced CGS 8-23 regarding the purpose of the POCD, which is to develop a Plan with policies, goals, and standards for the physical and economic development of the municipality and to coordinate development, identifying areas where it is feasible and prudent. He emphasized the ‘standards’ portion of the purpose. He then described the evolution and thought process of how the metrics have come to be what they are today (i.e., from 10,000 sq. ft. and a 300-foot greenbelt in March 2006 to 20,000 sq. ft., to metrics being totally removed, etc.). He described the rushed circumstances under which the 12/12 changes (i.e., SAR map versus Transect, metrics out of FBD, no greenbelt #, etc.) were introduced and his 12/13 email requesting feedback from all of the Commissioners. He then noted his
and Mr. Dahlquist’s second thoughts shortly thereafter, indicating that the Plan needs to be as clear as possible with respect to the policies and standards that describe the intent and desired outcome to the Southern Gateway. In his opinion, words alone are not sufficient and the Plan needs the suggested range of approximate square footages, as well as the approximate range of variable width for the greenbelt.
The Commission then discussed Secretary Gardow’s suggestion of continuing to move the process along to avoid further delays, submit the Plan with the 12/19 changes to the BOS, CRCOG as well as the public, and utilize the 65-day waiting period to iron out the remaining details. Commissioner Piecuch agreed the issues will have to be ironed out at some point, however he strongly suggested the Planning Commission agrees on a draft before presenting it to the BOS, CRCOG and the public for comments. Mr. Peck indicated he does not advocate for addressing the outstanding issues during the 65 days. The public, the BOS and CRCOG will not have access to what is ultimately decided on until the public hearing and, therefore, will not really be reviewing the ‘final’ plan. In his opinion, the process would
ultimately be cleaner if the Planning Commission decided on the issues prior to publishing the draft. In response to Secretary Gardow, later in the meeting Mr. Peck reiterated these comments emphasizing a cleaner process. Commissioner Jansen clarified that he does not want to be misconstrued or misquoted. He is against including the numbers, indicating that the Planning Commission is not equipped to come up with a ‘right’ number.
Commissioner Houlihan suggested the responsibility of the Planning Commission is to make judgments and produce a Plan based on what is best for the Town. The issues need to be tackled sooner rather than later. He does not want to take a chance on the Plan ultimately failing to be approved. He views it as a good thing that the Big Box issue raised the level of concern and created more tension to process, but no application has come in yet and no data on such things as traffic impacts, etc. has actually been reviewed. The numbers and/or metrics in the Plan now assume a level of competency and judgment that the Planning Commission does not have and will ultimately handicap the ability to attract innovative, creative, functional designs that will meet the town’s needs. He gave the example of the banquet facility that
would not have happened if this Plan had been in effect. The Planning Commission’s responsibility is to articulate a vision, but that vision needs to be consistent with the interests of everyone as whole. In addition, in light of the recent open space purchase commitments the town needs responsible economic development to financially support that. In his opinion, there will be harmful, unintended consequences to economic development, as well as tax revenues, if the 12/19 Plan is approved. The Plan can sufficiently present the vision and set the bar in prose. The numbers do not necessarily bring clarity.
Commission Mead expressed his desire to bring the issue to a vote, indicating everyone had thoroughly voiced their opinion and there was no need to keep repeating the same ideas. Commissioner Drake confirmed with Chairman Loomis that some minor changes will end up being made to the Draft prior to its Springtime adoption. He suggested CRCOG will not be concerned about these type of homegrown issues and in an effort to compromise and continue to move forward, the draft could still be released and changes made during that waiting period. Commissioner Piecuch, however, noted that those changes are intended to be in response to the BOS, CRCOG and public comment, not because larger issues have not been resolved. Proceeding in such a way will only serve to frustrate the purpose of the Statute giving 65 days notice to the
public.
Chairman Loomis suggested that the idea is false that limitations, in words and a few very thoughtfully selected numbers (i.e., to suggest scale and greenbelt widths), is a deterrent to good design. He referenced Mr. Dahlquist’s frequently expressed opinion that applicants will be guided by the parameters. The BOS, the Zoning Commission, and the public have not seen the draft since 11/3, which is substantially different now (in numbers and prose) in terms of both the Future By Design and Special Areas. In his opinion, it is time for everyone to see and comment on the proposed Plan in its present form, which was appropriately presented and approved.
In order to strike some compromise, Commissioner Drake again suggested meeting with Zoning in order to get their feedback on what types of setbacks, etc. would be appropriate for this area. In Commissioner Houlihan’s opinion, that process would be somewhat disjointed since Zoning is actually waiting to update their regulations until the Plan is finished. In addition, at the joint meetings they have already voiced their opinion about not including such specific numbers in the Plan. Commissioner Piecuch noted that once the Plan is developed and Zoning responds with their proposed implementation (i.e., new regulations), the Statutes require a zoning referral to Planning. Commissioner Drake confirmed that Planning cannot overrule Zoning, but if a negative referral is given Zoning would then need at least a 2/3 vote to
pass the regulations.
Chairman Loomis again provided the opportunity for all Commissioners to comment. Commissioner Piecuch reiterated his concern about what the intent of the Plan is, i.e., a vision and a guide, or a regulatory document with caps and restrictions. He supported the intent to include metrics for guidance and illustrative purposes. However, the public and commissions’ interpretation leaned more toward the numbers representing caps and restrictions. Whether the metrics are right or wrong, he does not believe the Plan should be a design manual, nor does the Plan have the regulatory ability to include caps and restrictions. Whether the restrictions are included or not, the Planning Commission can review applications and determine consistency with the Plan. He suggested the argument of including the specific numbers in the
Plan to provide clarity is flawed. The clarity is more than offset by the public confusion about whether or not Planning is trying to regulate, or worse, whether or not they even have the power to regulate. The Zoning Commission is the one with the authority to either make a development happen or stop it from happening and he does not want the public to have the opinion that Planning can also do that. All of the drafts present essentially the same vision, but the difference is the manner by which it is stated. In his opinion, the draft with the specific numbers leads to taking a hostile posture towards the Zoning Commission, which he does not want to do considering all of the work accomplished so far in rebuilding bridges between them.
Commissioner Houlihan suggested if the Commission includes the Draconian limits most of the potential people who would consider investment to even start to a development design would be eliminated. The Planning Commission is putting out a Plan that says CityplaceSimsbury does not want any development greater than 25,000 sq. ft. and yet, again, the Commission does not have the information, the knowledge, and the understanding of the development business to know what development is even being excluded. He expressed his opinion to move to rescind the 12/19 Plan, noting it is not ready for primetime.
Commissioner Jansen expressed his opinion to rescind the 12/19 draft. He appreciated Chairman Loomis’ and Mr. Dahlquist’s thoughtful selection of the numbers and their sincerity, but they were not selected by the people with the resources, vision, and ability to develop this particular piece of property. He argued against the inappropriate process by which the 12/19 changes were presented, i.e., actually during the meeting and not prior to the meeting for sufficient review.
In light of Mr. Peck’s clarification of the difficulty to continue working on the Plan during the 65-day waiting period, and the ultimate desire of getting a Plan all of the Commissioners can agree upon, Secretary Gardow reversed his position and expressed his desire to rescind the 12/19 draft.
Chairman Loomis noted Mr. Dahlquist’s opinion that the DRB’s role is to tweak applications, now mostly done by persuasion. They, however, would like to see stronger tools in terms of policy in order to provide leverage to their work. Chairman Loomis has considered the Planning Commission’s work with Zoning to have been very collaborative. He referenced Zoning’s changing requests for specificity in the Plan. In his opinion, it is very much in the Planning Commission’s interest to let the public see all the changes since 11/3 and that these numbers are consistent with the vision, intent, and standards that the Planning Commission promulgates for the Southern Gateway.
Commissioner Houlihan urged a vote by the Commissioners on the motion to rescind the 12/19 action on the Special Areas chapter.
The motion was approved by a vote of 4-2, with Commissioners Jansen, Piecuch, Houlihan and Gardow voting in favor of rescinding and Commissioners Loomis and Bednarcyk voting against.
IV. CONSIDERATION OF ITEM V REQUESTED BY COMMISSIONERS JANSEN, PIECUCH, AND HOULIHAN IN ACCORDANCE WITH THE ATTACHED NOTICE TO CAROLYN KEILY DATED DECEMBER 26, 2006.
In light of the Town Attorney’s opinion that the vote regarding the Tariffville Green is a valid vote in good standing, the Commission agreed to pass by this agenda item.
V. CONSIDERATION OF ITEM VI REQUESTED BY COMMISSIONERS JANSEN, PIECUCH, AND HOULIHAN IN ACCORDANCE WITH THE ATTACHED NOTICE TO CAROLYN KEILY DATED DECEMBER 26, 2006.
Chairman Loomis suggested consulting with Town Staff to devise a plan to complete the work that is needed to be done and present that plan at the 1/9/07 meeting, following the business items that night. Attorney DeCrescenzo clarified that adjournment would take precedence over the remaining agenda items. After this evening what remains is actually no action of the Planning Commission on the Special Areas section because the previous action has been rescinded. Chairman Loomis confirmed that the rest of the 12/19 Draft Plan is still intact. He agreed with Commissioner Drake that prior to the 1/9 meeting compromises or thoughts regarding the Special Areas can be brought forward, but it is just not clear how much will be able to be addressed on the 9th.
VI. ADJOURNMENT
Commissioner Jansen motioned to adjourn the meeting at approximately 9:30 p.m.. The motion was seconded by Commissioner Piecuch and unanimously approved.
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Ernest B. Gardow, Secretary
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