MINUTES
WATERTOWN ZONING BOARD OF APPEALS<= o:p>
CONTINUATION OF PUBLIC HEARING
WEDNESDA=
Y, AUGUST
23, 2006 - 7:30 P.M.
WATERTOW=
N HIGH
SCHOOL TECHNOLOGY CENTER
APPLICATION #833 – GARY AND =
AMY
SWINGLE
PRESENT: &=
nbsp; &nbs=
p; &=
nbsp; John Griffith, Vice Ch=
airman
&nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; Roger Mitchell, Acting
Secretary
&=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; Phil
Roger
&nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; Enrico Sarandrea, Chai=
rman
ABSENT: =
&nb=
sp; =
None
ALTERNATES PRESENT:<= span style=3D'mso-tab-count:2'> &= nbsp; Gary Swingle
ALTERNATES ABSENT: &=
nbsp; Chris
Lafferty
OTHERS PRESENT: =
; &n=
bsp; Moosa
Rafey, Assistant Zoning Enforcement Officer
1. =
Call
Meeting To Order
Mr.
Sarandrea, Chairman, Called the Public Hearing to Order at about 7:50 p.m. =
(no
time given).
2. &nb=
sp; Roll
Call
Mr.
Mitchell, Acting Secretary, executed the Roll Call.
Mr.
Sarandrea, Chairman, asked Mr. Swingle to sit in for Board Vacancy.
MR.
SWINGLE RECUSED HIMSELF FROM THIS APPLICATION AND LEFT THE ROOM.
CONTINUA=
TION
OF PUBLIC HEARING
APPLICAT=
ION
#833 – GARY AND AMY SWI=
NGLE
AUGUST 2=
3,
2006
Page 2
3. Hearing of Cases=
&=
nbsp; C. Continuation
of Public Hearing from July 20, 2006 - Application #833 of Gary and Amy Swi=
ngle
request for a variance of Section 7.4 of the Watertown Zoning Regulations
concerning access to a commercial property located in the Town of
&=
nbsp; Recess
or Adjourn, the Public Hearing must be Closed by August 30, 2006 unless
applicant grants a time extension.
Atty. Simoncelli: We've been here numerous times
before. I think we've said ev=
erything
we need to say on this application.
If you have any questions, I'd be happy to attempt to answer them.
Mr. Sarandrea: Does anyone have any questions?
Atty. Simoncelli: I understand Atty. P=
ilicy
gave you an opinion (inaudible) I concur and add to it. Thank you.
Mr. Sarandrea: Is there anyone here who wishes to speak for or
against this application?
Denise Cloutier, Attorney Representing Dan and
Melissa Conron
Atty. Cloutier: The Conron's are abu=
tting
property owners (inaudible) subject of this application for a variance. The Conron's have been opposing th=
e use
that is the subject of this variance application now since 1999, more than 7
years. I am aware that everyo=
ne is
familiar with the application and everyone is familiar with our opposition =
and
I will not belabor things too much.
I do need to raise a few points because just as you need to do your =
job
here, I need to do mine and we do need to create a record in case this is t=
he
subject of further litigation and also given your deliberations to date the=
re
are certain points that I do want to emphasize before you deliberate further
tonight.
CONTINUA=
TION
OF PUBLIC HEARING
APPLICAT=
ION
#833 – GARY
AND AMY SWINGLE
AUGUST 2=
3,
2006
Page 3
The Swingle's have been
relentlessly seeking to use their property in a manner that violates the zo=
ning
regulations here since 1999. =
The Cease
and Desist Order was issued on June 25, 1999, the Swingle's appealed that to
your Board and you upheld that in 2000.&nb=
sp;
They then appealed your decision to the Superior Court. Their appeal was dismissed with re=
spect
to their claims as to the riding rink on their property. It was then remanded to this Board=
to
consider additional evidence, despite that remand order the years have pass=
ed
given that order was issued in April, 2004 and there has been no decision o=
n that
matter by this Board. The Cea=
se and
Desist Order remains unenforced despite the fact that it was never
reversed. We're doing a varia=
nce
application but that does not nullify the fact that the Cease and Desist Or=
der
remains valid and enforceable.
There's an indication =
that
the settlement agreement entered into by this Board as well as Zoning Enfor=
cement
Officer in April of this year removes the Cease and Desist Order from having
any effect. It is our positio=
n that
our settlement agreement is null and void and unenforceable and in violatio=
n of
the Conron's rights to fundamental fairness. I would like to bring your attenti=
on,
and I will leave all of these documents for the record just to be sure they=
're
in the case file, the settlement agreement that contains the provision that=
the
Cease and Desist Order would be of no effect, and only one paragraph, and t=
hat
is paragraph 6 which also addresses this application fo=
r a variance. And that paragraphs says in the ev=
ent
the Swingle application for a variance as described in paragraph 4 thereof =
is
denied. The decision is publi=
shed
and no appeal is taken. The Z=
.E.O.
shall have 60 days from determination of the appeal period within which the
issue a Cease and Desist Order encompassing the violations cited in the
original Cease and Desist Order. Should
the Z.E.O. fail to issue such Cease and Desist Order, Swingle may apply for=
a
certificate of Zoning Compliance which shall not be denied for the reasons =
set
forth in the original Cease and Desist Order, so what this agreement purpor=
ts
to provide is that even if the variance application is denied and somehow e=
ven
if it's denied if there's no Cease and Desist Order issued, that they can g=
et a
Certificate of Zoning Compliance. Despite the acknowledgment by applying for a variance that th=
ey are
not in compliance. The
settlement agreement was signed on April 12, 2006. The settlement agreement provides =
that
the Swingle's intended to file this variance application, the variance
application was filed the day after this settlement agreement was signed.
CONTINUA=
TION
OF PUBLIC HEARING
APPLICAT=
ION
#833 – GARY
AND AMY SWINGLE
AUGUST 2=
3,
2006
Page 4
The first is this
application is part of the settlement which is void and unenforceable,
it's void because the Z.B.A. respectfully is not authorized to settle appea=
ls,
you're authorized by Statute to hear and decide matters that come before yo=
u,
but you are not authorized to enter into settlement agreements under that
Statute. The supposition that=
this
is an (inaudible) act of the settlement agreement is null and void.
Second the agreement
provides and this is referenced in Atty. Pilicy's lette=
r,
that the Z.E.O. is to withdraw the Cease and Desist Order. Again respectfully under C.G.S. 8-=
7 there
is no authority granted to the Z.E.O. to withdraw a Cease 7 Desist Order, u=
nder
8-7 only the Z.B.A. can reverse a Cease and Desist Order and I remind you t=
hat
this very Board upheld the Cease and Desist Order previously.
Third, because the rem=
and
from the appeal of the Cease and Desist Order, bringing that matter back to
this Board was never decided it was purportedly settled but it was never
decided, (inaudible) is still pending and under C.G.S. 8-6a that remand mus=
t be
decided before any application for a variance, because as you know if you've
got both a Cease and Desist Order appeal and a variance application before =
you,
you've got to decide the Cease and Desist Order first.
The application should=
also
be denied on the second ground aside from the whole settlement (inaudible) =
that
this Board is not authorized to grant use variances. Atty. Pilicy has provided case law=
in
his letter which I just received tonight which appears to but I won't
characterize it, I'll leave it to your reading, I do not think this changes=
our
position whatsoever. If your =
Zoning
Regulations were found to be unconstitutional and void and therefore you we=
re
unable to follow them, that's one thing, but right now they're in effect,
they're not for you to either follow in some cases where it's easier to fol=
low
them and to ignore them in case where you follow it difficult to follow the=
m,
they're in effect, they've been passed and I would refer you to the Connect=
icut
Supreme Court decision that I cited in my letter submitted in connection wi=
th
the prior application in which the Connecticut Supreme Court stated, I refe=
r to
Wells versus Zoning Board of Appeals, which stated that the statutory autho=
rity
to grant variances may be limited by Zoning Regulations (inaudible) by the
extent to which uses shall not be permitted by variances in areas in which =
such
uses are not otherwise allowed. In
this particular case, there is a specific regulation that precludes a use
variance from being granted that would allow the exact use of the Swingle's=
continue
to be seeking and have been seeking since 1999.
CONTINUA=
TION
OF PUBLIC HEARING
APPLICAT=
ION
#833 – GARY
AND AMY SWINGLE
AUGUST 2=
3,
2006
Page 5
Secondly the Swingle's=
can't
establish the cause necessary for a use variance to be granted un this case.
They've not established that this would have no substantial effect on
the comprehensive plan. This =
is
traffic that's passing on a dirt driveway where there can be no control iss=
ued
over the extent of that use because the pathway goes to Bethlehem where the=
re
is no Zoning whatsoever, so whatever the use is now, if there is a use vari=
ance
that is granted, it would be absolutely absent any ability to control and as
the tax assessor for the town of Morris indicated the Conron' property has
already had a 10% reduction in value specifically because of the traffic th=
at
passes right next to their back yard.
Further the Swingle's have failed to prove any unusual hardship,
financial loss (inaudible) financial loss does not constitute a hardship, i=
t is
not a proper basis for a variance.
Further what we typically see in such applications is a financial lo=
ss
because of the devaluation of the very property at stake. The Swingle's don't have that
hardship. Their land would no=
t be devalued. Their claimed
hardship, the financial hardship because the value of their warehouse busin=
ess
enterprise that they have put on the property in
I have watched since M=
ay of
this year, your deliberations relative to these 2 back to back applications,
and I have seen you struggling with the issues presented by this case. I would submit that the legal issue, the zoning issues presented by this case are not
difficult, they do not merit struggle.&nbs=
p;
What I see you struggling with, respectfully, is=
not wanting to cause a financial loss to the business of the Swingle's, and
it's my understanding that Mr. Swingle is now a member of this Board. That sympathy, any sympathy that y=
ou may
have for the Swingle's simply has no place in applying the zoning regulatio=
ns
to this particular issue on this particular matter at hand. They have not established what the=
y need
to establish that would warrant the use variance being granted here, even if
this Board had the authority to grant it, and again respectfully I submit t=
hat
you don't.
CONTINUA=
TION
OF PUBLIC HEARING
APPLICAT=
ION
#833 – GARY
AND AMY SWINGLE
AUGUST 2=
3,
2006
Page 6
With that what I would=
like
to do is just to ensure that the record is complete, I am going to submit to
your Assistant Zoning Enforcement Officer the original 1999 Cease and Desist
Order the remand from the Superior Court in 2004 in which part of the Swing=
le
appeal was absolutely dismissed and part of it was remanded for further
decision here, the settlement agreement and release was signed by the
Swingle's, Mr. Sarandrea, Ms. Barton and the Town Manager, the memo from the
Assistant Zoning Officer which acknowledges that this application was submi=
tted
in connection with this settlement agreement, the original application was =
#823
and my letter dated June 20, 2006 which was submitted in connection with
application #823 but also applies to #833, the one we're here on tonight.
Mr. Sarandrea: Is there anyone else who wishes to speak for or
against this application?
Atty. Pilicy: I have been asked to
comment on two separate occasions for this application. Initially with Application #823 I
prepared a brief legal opinion with respect to the legal test for a variance
and where the hardship element may be taken into account and again hardship=
is
the discretionary wrestling match that this Board goes through on every
variance application. As you'=
re aware,
you must find hardship. Typic=
ally
hardship is genuinely presented in a case where you have circumstances that=
are
beyond the control of a property owner with impact on a particular piece of
property in a manner different from other properties in the same zone and m=
aybe
even other properties in the same town.&nb=
sp;
In this case there are facts that have been alleged to constitute
hardship, in the end it's your judgment whether it does or it does not, but=
we
have a situation that in my opinion anyway is unique based on the location =
of
the property where it borders 3 towns, and one portion of the property is b=
eing
used for a use that is not prohibited so therefore implicitly is authorized=
by
the Town of Bethlehem but yet because of the location and other topographic=
or
physical characteristics, there's no way to get to that property except thr=
ough
Watertown, so I think on that basis alone there is at least an argument and=
a
claim of hardship to be made and for this Board to judge that claim. So it is in my opinion within your
discretion to determine whether or not those facts or any other facts that =
may have
been alleged by the applicant constitute a sufficient claim of hardship to
warrant a variance.
CONTINUA=
TION
OF PUBLIC HEARING
APPLICAT=
ION
#833 – GARY
AND AMY SWINGLE
AUGUST 2=
3,
2006
Page 7
Now with respect to the
legal argument in opposition that was delivered by letter to your last publ=
ic hearing
date, I've chosen to comment on two portions of that. One portion is with respect to a c=
laim
that the local regulations prohibit this Board from granting use variances =
and
it is true that
The second point that I
commented on is the argument that was further expanded tonight, as to the
viability I guess of the existing Cease and Desist Order. That case was the subject of many =
nights
of hearings before this Board which led to a court appe=
als,
which led to a partial decision I guess and a remand for further discussion=
of
some of the key issues. There=
after
as you're aware the parties resolved most of those outstanding issues if no=
t al
of them except for the present variance issue to the satisfaction of everyo=
ne
that was a party to that action, or everyone that sought to become a party =
to
that action. That appeal agre=
ement
was signed off on by all the parties and it did constitute in effect a
withdrawal of that Cease and Desist, so it's my opinion that that Cease and
Desist no longer exists and the only thing that's before the Zoning Board of
Appeals right now is the present variance application.
CONTINUA=
TION
OF PUBLIC HEARING
APPLICAT=
ION
#833 – GARY
AND AMY SWINGLE
AUGUST 2=
3,
2006
Page 8
In sum I believe that =
it is
properly before your Board to consider on the merits and as to the merits, I
think you have the discretion to take into account the hardship arguments a=
nd
come to your own decision, and as we've discussed before, I think the Zoning
Board of Appeals has in many situation a wide range of discretion and I wou=
ld
go so far as to say that ton the same fact you could decide in favor or you
could decide opposed and a court would probably support either decision bec=
ause
I believe the Legislature and the prior court precedent generally speaking =
give
the Zoning Board of Appeals a wide range of discretion when dealing with lo=
cal
issues, particularly local issues that tare as unique as this one. So having said that I'll be happy =
to try
and answer any questions, but it certainly is one of the more unusual cases
that you've had.
Mr. Sarandrea: What you're saying i=
s that
some of the other neighbors that were there that came before us, that's all
settled, the Cease and Desist is settled?
Atty. Pilicy: My understanding is =
that
your present record contains boundary line agreements and settlement agreem=
ents
and letters actually in support of this application by all of the other
neighbors that were originally appearing in opposition to the earlier
application, but that's part of your record already.
Mr. Sarandrea: Right. Any
questions? Thank you, =
Atty. Simoncelli: Just a couple of poi=
nts
that Atty. Cloutier mentioned, #1 concerning the riding rink the Swingle's =
have
applied for a special exception and that will go through the normal course =
of
the Planning and Zoning Commission and the Zoning Board of Appeals. The second thing is the court deci=
sion
did remand this Board, the Swingle's appeal of the original Cease and Desist
Order. For the record we will
withdraw that appeal, so the only thing pending before you tonight is the
variance conceivable, that's the only conceivable thing that you have before
you, okay?
Mr. Sarandrea: Anyone else wish to s=
peak?
MOTION: &= nbsp; (Mr. Roger, sec. Mr. Griffith) to Close the Public Hearing for Application #833 = of Gary and Amy Swingle request for a variance of Section 7.4 of the Watertown Zoning Regulations concerning access to a commercial property located in the Town of Bethlehem through a residential property at 2579 Litchfield Road, Watertown, CT.
Discussion: None<= o:p>
MOTION PASSED UNANIMOU=
SLY
CONTINUA=
TION
OF PUBLIC HEARING
APPLICAT=
ION
#833 – GARY
AND AMY SWINGLE
AUGUST 2=
3,
2006
Page 9
Public
Hearing Closed at about 8:20 p.m. (no time given).
Respect=
fully
submitted,
Enrico
Sarandrea, Chairman
Zoning =
Board
of Appeals
&nbs=
p; _________________=
_________________
&nbs=
p; Lynn
M. LaForme, Minutes Secretary