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Planning Commission Minutes 02/07/2017

FEBRUARY 7, 2017

PRESENT WERE:  Harold Thompson, Don Willis, Todd Machnik, Judy McQuade, Robert McCarthy, Chris Kerr, Marissa Hartmann, Jane Cable, Barbara Gaudio, Mary Stone, Nancy Hutchinson, Diana Atwood Johnson, Torrance Downes, Ed Cassella, Kim Groves, Kim Barrows, Bonnie Reemsnyder, Mary Jo Nosal and Skip DiCamillo.  

Thompson stated the workshop this evening is to discuss the proposed modifications  to the Plan of Conservation & Development for the Town of Old Lyme.   Thompson stated that the Planning Commission has been discussing this for several months The goal was simplify the process if a property owner is in a flood zone and under the FEMA requirements; to elevate their structure.  He said the commission is not promoting the elevation of structures in the flood zone but rather just trying to streamline the process.   Thompson noted the second portion of the proposal is to allow property owners to protect their properties along the shoreline if they choose to do so.

Nancy Hutchinson distributed copies of her comments to the Planning Commission regarding the proposed modifications to the Plan of Conservation and Development.  (see attached).  Hutchinson stated she supported the concept of making it easier for property owners to raise properties in flood zone areas.  She stated one way to do that is to say  “if the only thing you need is a variance for height” and no other variances are required than she would support it.   She further stated she felt the way this was written was so broad and it was not just dwellings but any structure.  She suggested the wording “to allow legal, structurally sound dwellings in special flood hazard areas to be safely raised to the minimum height required to comply with the FEMA Regulations without a need for a variance if a height variance is the only variance that would be required to complete the proposed project.  Hutchinson stated often the problem is the property being raised has issues with setbacks, coverage requirements.  She
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further added when the application is before the Zoning Board of Appeals that commission has the opportunity to talk with the owners and ask questions with regard to parking, landings, staircases, and decks and often the commission is able to reduce their non-conformities.  

Judy McQuade stated on West End Avenue in Hawks Nest Beach most of those cottages have nothing located behind them except marsh land that would be impacted.  She stated in Point O’ Woods, however, where there are houses surrounding every corner of the property an owner just raising his house could be impacting several adjacent properties.  She said they had a case where the house was elevated but the neighbor to his north as a result would be looking at the bottom of the structure and she felt all these issues need to be considered.   Therefore she felt during the discussions with the members of the Zoning Board of Appeals they were often able to lessen the impact and non-conformities and create a better situation for the adjoining properties.

Jane Cable stated people are elected to do Land Use and she felt this takes a large portion of the ZBA’s responsibility away from them.  Thompson stated that was not the intent.  McQuade stated there are certainly plenty of applications.  McQuade stated there are guidelines under FEMA that the commission cannot control but other things can be controlled and often the discussions with the ZBA makes things a little easier for the neighbors to swallow.

Ed Cassella stated this is a suggestion/recommendation that the Zoning Commission adopt regulations in order to do this but the Zoning Commission can say that they don’t want to do that.   Thompson stated they could also add additional qualifications and requirements.   Ed Cassella said this is meant to be narrowly defined and its only meant not for people who want to tear down and rebuild and not for people who want to add decks and things of that sort just to take exactly what exists and jack it up and put piers so it is code compliant.  Cassella clarified the Planning Commission is not drafting a regulation but amending the Plan of Conservation and Development.  Cassella stated the commission could present a draft regulation but the proper procedural step for the Planning Commission is to say here is the policy and if the Zoning Commission or other agencies want to narrowly define the wording they can do that.   Cassella
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stated this provision is for homeowners who elect to raise their dwelling to meet FEMA because their flood insurance is too costly and they want to take proactive measures.  

Cassella further stated the first coastal policy is the managing of coastal resources with private property rights.  Cassella stated we believe in the future based on science that sea level rise is going to present major issues with the development and ability to utilize properties on the shoreline.  He stated the goal of this is to get out in front of it with features like living shorelines which is what this was meant to convey therefore the intent was to take what was existing in the legislation and try to incorporate into the POCD so when people come in they have suggestions for people who want to improve their waterfront.  

Todd Machnik stated some of the issues he deals with on a daily basis are the different interpretations of the laws as they are written in the State of Connecticut.  He said we can all debate as to how much sea-level is rising.  He further stated that right now the CT. DEEP says there has always been a coastal jurisdiction line but now the DEEP is interpreting that they have the right to review everything within a 1,000 feet of the coastal jurisdiction line.  He stated if property owners want to install appropriate measures on their own property they ought to be able to do that.

Diana Atwood Johnson asked how changing the town’s Plan of Conservation and Development would impact this issue at the state level.  Todd Machnik stated he thinks that the DEEP also looks at individual POCD’s and takes that into consideration during their decision making process.  He concluded by stating that if a property owner wants to protect their home and extend their period of time of enjoyment they should be able to do so.   

Kim Barrows stated with respect to the ZBA case regarding 32 Massachusetts Road that was distributed to those attending the workshop, that Decision to grant the variance by the Old Lyme Zoning Board of Appeals is being appealed by a neighbor, not for height but for “lack of hardship”.  Since the Verillo v. Zoning Board of Appeals of the Town of Branford et al was upheld stating that elevating a
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structure to meet FEMA requirement was not a “unique hardship” since in the beach area, most of the houses have the same issue.  So this is not unique.

If the POCD makes a recommendation that the Town/Planning Commission is receptive to encouraging property owners to bring their houses/cottages into FEMA compliance may go a long way in the future if the Verillo case stands.

If adopting regulations to elevate an existing structure to meet FEMA and have just the necessary landing and steps without going to a Board or Commission and just completes a Certificate of Zoning Compliance will simplify the process.  

If the height exceeds the 24’ allowed in an R-10 zone then the applicant would have to go to the ZBA for approval.  In 2008 the height allowed in an R-10 zone went from 35’ to 24’.  If a structure is demolished and is to be rebuilt then the applicant must try to conform to the zoning regulations in place.  

Diana Atwood Johnson stated she felt changing the Towns Plan of Conservation and Development to address these two issues was a problem.   She noted that the two issues being discussed she felt were regulatory issues.  .  She said in  the larger scheme of the town addressing  sea level rise and hazard mitigation that these are  big complicated every changing discussion and she doesn’t think that the Planning Commission should take the step of changing it for this specific reason.  She stated there are a lot of things that could be changed because things are so different today since when the last plan was written.  She stated the POCD is not about today it is about the next ten years and she feels that discussion should take place prior to any changes.  She stated she felt the Planning Commission could ask that the Zoning Commission or Zoning Board of Appeals to consider implementing their suggestions.

Cassella asked Diana Atwood Johnson what she suggested.  She stated there is so much information in the Hazard Mitigation Plan and suggested someone go through it and determine the items that should be discussed.    For example, the living shoreline, the elevations, and other things in the document such as the acquiring of beach houses after storms.    

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Jane Cable stated if the Zoning Commission put individual property rights first then Zoning could not disallow any activity that an individual property owner wanted to engage in.  She stated that we disallow dry cleaning in industrial parks because it is a large pollutant and with this document we would not have the ability to say no.     She stated this document undercuts everything that Zoning, Conservation and Wetlands do.  She stated they need the right to make their own decisions and not be instructed what is the priority.  Thompson stated the Planning Commission was simply making recommendations.  She stated she felt it was a dictation that was telling the commissions how they were to make decisions.  

Ed Cassella stated it does not undo the Zoning Regulations and the ability for the Zoning Commission to implement regulations to allow and disallow.  Sometimes there is a decision that needs to be made in the coastline protection area which this is meant to be limited to.   This does not concern dry cleaners in residential zones.  Cable stated the document is poorly written and should say what it means to say and not have to be explained.  

Nancy Hutchinson said she felt it was the Planning Commission’s intent is to help facilitate people to comply with FEMA regulations.    Cassella asked why it would be just residential why it would not include commercial such as the properties on Hartford Avenue.  Hutchinson said it could also include commercial properties but this would involve additional discussion  because there are a lot of other things that go with commercial such as parking.  Cassella stated that none of that would be effected just the building would be raised.  He said the purpose of this is to take the existing building in its exact place and put it up in the air so it complies with FEMA.  Cable said she was not willing to take elected leaders out of the loop including Zoning.  Cassella stated Zoning would not be out of the loop because a Zoning Compliance Permit would be required.   

Mary Stone stated she has read the document several times.  She said the last paragraph on Page 3 seems to contradict things that have gone before it.  Stone stated there needs to be some kind of balance between individual property rights and the rights to homeowners and business owners to protect their dwellings and their structures.  She further stated that rising sea-levels are going to impact us
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and the push and pull with the sea needs to be accommodated.  She stated the last paragraph does not reflect the balance that needs to happen especially with increasing requirements from the state.  She stated that a lot of the concerns about this document could be taken down a few notches if you agreed with the idea that there has to be a balance and that property owners are going to have to make accommodations.   She stated there has to be a balance between natural forces and what we can do as individual property owners.  

Judy McQuade stated there will still be variations in most cases and only a few applications will meet the criteria where the only issue is height.   She noted she felt there was importance to the discussions with the property owners during the application process.  She stated she will be very interested in the court decision.

Torrance Downes stated that there have been a couple of statements about if FEMA makes somebody elevate their house.  Downes stated FEMA never makes anybody elevate their structures.   He stated it is the choice of the property owner if they want to increase the value of their home over 50 percent.  Ed Cassella stated if your home is damaged by a storm and you need to repair it that could be an instance where FEMA makes you in order to repair your siding,  windows, kitchen etc.  He said all those things add up and if they are more than 50 percent of the value of the structure you have to raise up.  

Nancy Hutchinson stated if a variance is granted for someone in FEMA the town has to report it to the Federal Government and if there are enough cases it could increase insurance for the entire town.  She further stated something could be included in the wording with regard to people raising their houses because it is safety and you don’t want people put at risk during a hurricane.  Therefore, should we be encouraging people to raise their houses for safety.  

Thompson said the only thing the commission was suggesting was that the process be simplified to meet the FEMA guidelines.  He noted the town was being trumped by the government.   

McQuade didn’t feel simplifying the process was worth it to save a few months of time and an application fee.  

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Torrance Downes  said he has spoken with  Chris Costa, Zoning Enforcement Officer in Old Saybrook a number of times and she has never heard her express their process,  which this proposed change is based on, has produced any issues.  
Kim Barrows stated that elevating to meet the flood elevation in Old Saybrook was never an issue because the height limit in that zone is 35 feet where in Old Lyme it is 24 feet.  It was noted that Old Lyme changed its height limits in the R-10 zone from 35 feet to 24 feet in 2008.  

Harold Thompson thanked everyone who attended the workshop for all their comments and input.  

Respectfully submitted,

Kim Groves

52 Lyme St, Old Lyme, CT 06371  (860) 434-1605

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