August 3, 2010
The monthly
meeting of the Sterling Zoning Board of Appeals was called to order at 6:32
p.m. by Steve Offiler, Chairman.
Roll call:
Steve Offiler-present; Diane LeDuc-present; Robert Lassan-absent;
Christine Farrugia-absent; Lincoln Cooper-present; Alternate Russell Dexter-absent;
Alternate Rick Waugh-present; Alternate Jim Perry-absent.
Alternate R.
Waugh was seated for R. Lassan.
Staff
present: Russell Gray and Judy Lincoln.
Also present
-Cal Caldarella and Mark Shipman.
Public Hearing on Application
#ZBA-10-01 for property reference by Map 3832, Block 17, Lot 242, owned by
Sterling Trails, LLC appealing the decision of the Zoning Enforcement Officer
for an eleven single family home private planned development:
Chairman
Offiler- What we would normally do is would we would hear first from the
Proponent, which is the Applicant We
would hear from the Opponent which would be Zoning Officer Joe Theroux if he
was present. Anyone else in the room who
wishes to comment who doesn’t wish to claim sides either way or finally the
Proponent would have an opportunity to wrap up. We are missing a few folks but we have enough
to keep going, so at this point the Proponents have the floor. I’d ask that you identify yourself clearly
for the purpose of the tape before you begin speaking.
Cal
Caldarella –Applicant.
Mark Shipman
- Representing the applicant. I’d like
to give you a handout for the record.
The original is there (given to Recording Secretary) and I think I have
enough copies for everybody which will shorten what he has to say. I don’t intend to give it to you with
gestures so I’ll try to summarize it. I
neglected to attach the Zoning Permit Application but
I believe you
already have that in your file as well as our letter to Mr. Theroux dated April
21 so these make reference to that but…..already included. And, I think you are all familiar with this
situation. This is a parcel of land that
was originally approved by the Selectmen, you’ll see a chronology in the
handout that I’ve given you. Do you want
to pause to indicate an arrival for the record?
Chairman
Offiler-Yes please. About 6:35 Alternate Russell Dexter.
J. Lincoln-
Do you want to seat R. Dexter seated for C. Farrugia.
Chairman
Offiler-Absolutely.
M. Shipman-And
I will state on the record that I don’t think he has missed anything
significant.
Chairman
Offiler-How many copies of this document…
M. Shipman-I
have another copy. I gave an original
and I had given each of you one. I’M
going to give the new arrival one. This
parcel was originally, there is an chronology there and I’m not going to spend
a lot of time going through. In 2005
there was an approval of 11-lots subdivision, call it a condominium division, I
suppose, approval subdivision or a zero lot line.
Chairman
Offiler – You called it a subdivision, sir.
Was there not a subdivision involved here?
M
Shipman-Well, it was a single lot so it is probably not a subdivision. It was a site plan approval of a 11 lot
condominium/zero lot line development which was approved by the
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August 3,
2010 – ZBA Meeting
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Selectmen in
May 2005. In 2006, as you are aware you
had the new land use ordinance which did not contain a grandfathering
position. The Selectmen subsequently
acted on the application again indicating that it deserved to be continued as
approved and during that period the applicant continued to process the
approvals other than the Selectmen that he needed. He got a wetlands approval, an STC approval,
and had extensive plans and drawings done.
When Mr. Caldarella brought the property as Sterling Trails, LLC…..
Chairman
Offiler- What was the approximate date of that, please?
M. Shipman- January 2010. “In January 2010 we immediately went to the
Town to confirm that they still had an approval that we could proceed with. There was a question whether that was so and
Mr. Theroux , we had previously discussed the matter with your Town Attorney
let me say off the record indicating that we were going to go forward with
continuing this properly. He said I will
have to wait until I’m asked. We eventually (and I’m truncating the time
period) made the application to Mr. Theroux that is now under appeal. He disapproved of the application and the
Town Attorney indicated, through Mr. Theroux, that the Selectman’s approval did
not protect us from the new Zoning Ordinance.
His position was that the predecessor to the applicant had not
continuously pursued the project from the time of the approval. Just for your edification, from the time of
approval in 2005 through approximately mid 2008 when the developer ran into
financial problems, he had put in drainage, catch basins, he had done two
wetlands crossings in accordance with the wetlands approval, he had done a
substantial amount of blasting, he had done complete construction drawings,
which were extremely expensive, all the survey work, erosion control, had put
in the piping, catch basins. In other words, he had proceeded in accordance
with the plan that had been proposed.
When the Zoning was approved, the Zoning makes that parcel, if it is not
pre-approved, makes that parcel a single lot.
A 20 acre single lot but a single lot nonetheless. A great deal of what was done was unnecessary
for a single lot or even a two lot if it was granted the permission to have a
second lot on the 20 acre parcel. It’s
unlikely that both wetland crossings were necessary, the catch basins that
follow the line of the proposed road would have been, at least, unnecessary at
those locations and might very well have no benefit to a development that a
single house that was placed in a different location on the premises in order to avoid the wetlands. It is approximately, you have as an
attachment, approximately $75,000 worth of work that went into that time. Since that time, Mr. Caldarella has spent
additional money developing the plans, he had to get a new engineer, additional
surveys have been done, so there has been a commitment of between $75,000 &
$100,000. Now, I’m not going to get
into, the Town Attorney has rendered his opinion and indicated that the
Selectmen’s approval is not grandfathered under your Zoning Regulations. We don’t agree with that, but our position
is, even if he is correct on that issue, Section 8-2 and in my preparation
memorandum indicates that the courts have construed Section 8-2 to indicated that
if there has been an “irretrievable commitment” to the project as designated,
than it is exempt from the imposition of the new zoning regulations and I have
given you a number of cases to that effect.
Specifically, I have referred to them on page two of my memorandum at
the bottom and we believe that
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August 3,
2010 – ZBA Meeting
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our actions
indicate that we are irrevocably committed to the land, to the particular use
that was previously approved, that we acted in reliance upon that and we and
our predecessor have continued to be irrevocably committed and that without
this Board indicating that the Zoning Enforcement Officer is incorrect, we have
committed approximately $100,000 of expense to that project to no avail. We believe that fits us under 8-exception and
Section 8-2 as described in the five cases I have cited for you. And each of
those cases is similar in some respect and I’m not going to quote chapter and
verse. A couple of them are situations
where the Selectmen acted and the courts subsequently said the Selectmen had no
authority under the general statutes to approve a plan, however if they had
authority under a specific local ordinance or special act they could, but they
all said that if the project had been irretrievably committed that it was
exempt under 8-2. That’s our position
and I’m not going to labor this at great length for you. I do want to reiterate, because I don’t want
to waive it, that we don’t agree that the plan was not previously approved and
that we proceeded and acted under that approved plan and should be entitled to
it. So, I am basically taking two
positions, I’m not rearguing that which we have already gotten the Town
Attorneys opinion for, but I am saying to you that irrespective of that opinion
I believe this Board has the ability to indicate that we have irretrievably
committed to the project and that as such, we are in effect, although the cases
don’t use the term grandfather, we are exempt from the imposition of the
requirements in new Zoning Regulations.
I’ll be happy to answer any questions.
Mr. Calderella is here to answer any questions.
Chairman
Offiler- Does anyone have any questions?
Give us a moment.
M.
Shipman-Absolutely, I have no place to go but home.
L. Cooper-Steve,
could I ask a question of Mr. Shipman?
Chairman
Offiler-Absolutely.
L.
Cooper-From what you’ve just told us, I would infer that you considered your
irretrievable, what did you call it?
M. Shipman “irretrievably
committed”
L. Cooper-It
says here “irrevocably”
M. Shipman-Sorry,
I used the wrong term.
Chairman
Offiler-That’s ok. We have it in writing
as irrevocably and we’ll go with that.
L. Cooper-I
guess that one would get the impression that the “irrevocably commitment” would
be that you’ve spent a lot of money.
M. Shipman-That
is certainly the basis for it and the actions that were taken were monetary and
while that would normally not mean anything if they were asking for a variance,
in this particular case, it’s the badge which we flash to show that we have
been irrevocably committed. Yes, it is
monetary.
L. Cooper-I’m
not inferring at all that it is only commitment; I’m just saying a large
portion of your commitment is monetary.
M. Shipman-I’m
trying to think of something other than monetary.
L. Cooper-I
can’t think of any.
M. Shipman-I
don’t think so.
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August 3,
2010 – ZBA Meeting
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L.
Cooper-Lets establish the fact then that that is one of main reasons; you would
like to
get something
back from your investment.
M. Shipman-No
question!
L. Cooper-I
just thought we ought to put that on the table for general understanding.
Chairman
Offiler-We have copies of correspondence between Shipman, Sosensky & Marks,
and Joe Theroux. You are?
M. Shipman-I’m
a representative of Shipman, Sosendky & Marks.
Chairman
Offiler-So you have seen all of these.
M. Shipman-Yes,
I have.
Chairman
Offiler-You understand but disagree with Mike Zizka’s opinion with regard to
his basically enumerated those three separate items which would vest a
plan. 1-State Law protects them; 2-Local
ordinance or regulations protect them; 3-The applicant has obtained building
permit for the structure shown on the plan.
This comes across to this committee as rather black and white and none
of these three conditions have been met in this project. There appears to be besides these three there
appears to be yet another condition and that would be this irrevocable commitment
contained in Section 8-2. My question is
how do you respond to his claim that there are really only three things and you
haven’t met any of them?
M. Shipman-Our
position is that no building permit was required for the work we did. But that the cases that talk about the
obtaining of a building permit contemplate that someone requires a building
permit before they can start to work. We
could start our work without a building permit because the work we were doing,
which was site work, did not require that building permit. So it is our position that that is the
portion that we disagree. We also
believe that the Selectmen had the authority to approve this even though Mr.
Zizka does not agree. But, in answer to
your second question, you second example, our position is that the same theory
by which we say that we require no building permit but we took significant
action is why the second part of my
argument and that is that the statue exempts the imposition of the regulation
where there has been an irrevocable commitment and in this case irrespective of
the building permit issue we have made an irrevocable commitment. So they are corollary but they are not the
same.
D. LeDuc-Is
it your position that “so called” approval by the Selectmen was valid. indefinitely? Twenty years from now you could come back and
said now we are ready to build, give us a building permit and you feel it still
would have been valid?
M. Shipman-No,
I don’t.
D. LeDuc-I am
concerned about the length of time that has elapsed.
M Shipman-I
do believe however, that once the work started and that’s with the building
permit exception that we had the right to go forward and complete it. Mr. Zizka talks about continuous and the fact
that a foreclosure intervened and there was a work stoppage does not mean that
work wasn’t going on or efforts weren’t going on continuously even though a
shovel wasn’t necessarily being placed in the ground. So, we believe that once the work started
under that approval and I use the word approval as I have, once the work started and we continued and we
had committed to that plan we at least had…..
There is
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2010 – ZBA Meeting
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probably no
five year provision under the approval I’m talking about but that’s an example
of how long a
site plan is generally given to be completed.
And extensions could normally be given.
Mr. Caldarella is literally prepared to put a shovel in the ground
tomorrow and proceed. He’s got his
plans, he is a general contractor himself, his financing is in place so we
believe that we could complete this expeditiously.
D. LeDuc-How
much of this work that you indicated here was done since 2007?
M. Shipman-There
was quite a bit of work done in 2008 and I don’t know how far. We know at least until August or September of
2008. I don’t know whether the developer
and we really don’t know that other than anecdotally. There is some indication that the developer,
even though he was in foreclosure, may have continued to do some work believing
that he could sell or salvage the premises.
But, it probably ended in either late 2008 or early 2009, the physical
work. He then spent his time trying to
put together a deal to sell the property which, you know, you can either call
it work or not call it work. As soon as
Mr. Caldarella got involved, he commenced having new plans drawn and preparing
to proceed. He was actually, before the
Attorneys opinion, under the impression he was going to literally start last
spring. So he took every effort between
January and April to get himself mobilized to start on the site and that was
when we got the opinion that he could not proceed. So there may have been a suspension, I’m not
sure I can tell you exactly how long.
R. Waugh-Can
I ask a question in regards to the billing statement? There isn’t really a
specified date except when it was faxed to someone in particular. It has the job name, estimated by, there’s no
real official date as to when that bill was submitted.
M. Shipman-It
wasn’t a silly bill. That was a
statement Mr. Calderella re-creating through the sub-contractors and
contractors that worked on the job. He is here is and can tell you how he did
that. But that’s his memorandum, his
handwriting, his notes.
D. LeDuc-It
is just an itemization of what was done, right.
M. Shipman-An
itemization of what was done and talking to the contractors that did the work
and then to the extent that he was unable/able to assess the work that was
there and based on his experience provide a conservative estimate of what was
spend. But a good deal of it was from
the contractors who did the work.
D. LeDuc-All
of it basically was the prior owners.
M.
Shipman-That is correct. Would it be
helpful to anyone to see a concept plan?
There is a subdivision approved, but, I mean there is a site plan we
claim Is approved. I have a conceptual
plan, I didn’t offer, but if anyone had a desire to see what it looked
like.
D. LeDuc-I’m
not sure it is entirely…..
Chairman
Offiler-I personally don’t……
M. Shipman-I
don’t consider it relevant, but…
D. LeDuc-I
think our purpose here is to say did Mr. Theroux apply the existing zoning laws
accurately according to the ….
M. Shipman-I
agree with you completely. I just
thought if someone was interested.
L. Cooper-
Appreciate you making the offer but I don’t thinks it germane.
M.
Shipman-But I do agree that it is not relevant to your consideration.
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D.
LeDuc-Right.
Chairman
Offiler-Does anyone have any further questions?
R. Dexter-No
D. LeDuc-Do
you feel as though you will have any other information to present?
M.
Shipman-No, I really don’t. I think that
you could close the public hearing and it would be appropriate. I don’t see anybody else that is here, other
than the Selectman.
Chairman
Offiler-Would you like to say anything at all, Russell?
First Selectman Gray-I don’t think I can add anything. I think his estimate of when they stopped
construction, the end of 09, I think that’s maybe later than when I thought
things stopped. It was considerably
before that. Beyond that…
M. Shipman-I
agree, I thought I said the end of 08 or maybe a little bit into 09. I don’t believe….
C.
Caldarella-To the best of my knowledge it didn’t go into 09. 07/08
M.
Shipman-O.K. so the end of 08.
C.
Caldarella-Some people that worked on it, worked on it in terms of giving me
information were cooperative, Most were
not because they didn’t get paid.
Several
people commented that that would make most people uncooperative.
There were no
other comments.
D. Leduc made
a motion, seconded by L. Cooper to close the public hearing at 7:00 p.m. All voted in favor of the motion.
Mr. Shipman
and Mr. Caldarella left the meeting.
Audience of Citizens:
No comments.
Approval of Minutes: L. Cooper made a motion, seconded by
R. Dexter, to approve the minutes of the July 6, 2010 meeting as written and
presented. All voted in favor of the
motion.
Unfinished Business:
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August 3,
2010 – ZBA Meeting
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made
on what “irrevocably committed” means and if the application meets that
requirement. A meeting with staff may be
necessary.
D.
LeDuc made a motion, seconded by R. Waugh, to table action on the ZBA-10-01
Appeal by Sterling Trails, LLC. All
voted in favor of the motion.
New Business: None
Any Other Business:
1) Chairman Offiler believes there is an update to the book “What’s
Legally Required” by Attorney Mike Zizka.
If so, the Board needs to obtain them for the members. 2) A
Zoning Application form is needed. J.
Theroux will be asked if the Land Use Appeal form would meet his needs if it
was re-titled as the Zoning Appeal Application.
This will be placed on next month’s agenda. 3) Chairman Offiler noted that anyone not in
attendance tonight “must” listen to the tape in order to participate in the
next meeting.
Dates for
next two meetings are September 7th
and October 5th
.
Adjournment:
D. LeDuc made a motion, seconded by R. Dexter to adjourn at 7.58
p.m. All voted in favor of the motion.
Attest:_________________________________________
Judith K. Lincoln, Recording Secretary
Attest:__________________________________________
Christine Farrugia, Secretary