Chairman Dominic N. Moschella called the Prospect Zoning Board of Appeals meeting to order at 7 P.M. Members present: Dominic Moschella, Carl Graveline, Harold Bernier, Martin Atkins and Alternate George Havican. Absent: Betty Lou Holley and Alternate Donato Orsini.
Chairman Moschella seated George Havican for Betty Lou Holley.
CORRESPONDENCE: None
Motion made by Carl Graveline, 2nd by Martin Atkins to pay the clerical bill. Unanimous
Motion made by C. Graveline, 2nd by H. Bernier to approve minutes of March 27, 2001. Martin Atkins and George Havican abstained. Motion carried
OLD BUSINESS: None
NEW BUSINESS: Motion made by C. Graveline, 2nd by H. Bernier to add a New Application to the Agenda. Unanimous
Steven D. Feinstein agent, principal in project and also an attorney reviewed property at 155 Union City Rd and what dome would be like & brochure. Requesting 35' height variance for construction of Prospect Sports Dome. Dome would be an Inflatable structure for tennis, golf, soccer, baseball etc. Community and family environment, primarily for golf. Dome would be 70' high at maximum height, site is off of the road therefore the base grade would be about 35' below road. Trees will remain undisturbed. C. Graveline questioned noise that would be generated - No noise at all, sounds like an air conditioner running, no external noise. Also questioned traffic anticipated. Hope to open late fall, early winter, hours would be approx. 8 A.M. to 10 P.M. Motion made by M. Atkins, 2nd by Carl Graveline to accept ZBA Application 3-2001 of Prospect Sportsdome, LLC as Tenant and schedule the public Hearing for May 22, 2001 @ 7:10 P.M. Motion Unanimous
PUBLIC HEARINGS:
7:15 P.M. ZBA Application 1-2001 of Roger & Lynda Malagutti, 23 Colonial Drive, seeking a 48 foot rear line variance for an existing shed. Notice published in the Republican-American on April 10th & 19th read into the minutes. Other shed is going to be removed. Applicant wasn't aware of the need for a variance or a permit. D. Moschella questioned location - only place to locate due to the leaching fields. H. Bernier questioned approval from Chesprocott - applicant indicated Chesprocott approved location. Shed size is 16X12X8. No one spoke in favor or opposition. With no additional comments from the board the public hearing closed at 7:20 P.M.
7:22 P.M. ZBA Application 2-2001 of Domenico & Franca DiLoreto, 20 Union City Road, appealing the Cease and Desist order issued by the Zoning Enforcement Officer, William Donovan. Notice published in the Republican-American on April 10th & 19th read into the minutes. Atty. Michael Broderick, representing the DiLoreto's, submitted for the file "Memorandum in Support of Appeal of Cease & Desist Zoning Enforcement Order of the Town of Prospect" (with Exhibits).
William Donovan, Land Use Officer/Zoning Enforcement Officer from the Town of Prospect reviewed Cease & Desist Zoning Enforcement Order. Property at 20 Union City Road was designated as a "Non-conforming use" within a Design Commercial Zone. Reviewed Section 230.3 & 230.4 of the Zoning Regulations: 230.3 prohibits a lot on which a nonconforming use has been conducted from being used for any other use which did not exist prior to the enactment of the zoning regulations; 230.4 prevents the expansion of a nonconforming use to no more than 33% above the level at which such activity existed on the date it became nonconforming by virtue of the regulations. Presently, specialty towing service exists as a business along with the sale of gasoline and also repossession work and automobiles being stored after accidents. William Donovan also reviewed previous applications applied to the ZBA by the DiLoreto's; 1 990 application for a canopy over the pumps was requested as a gasoline and general repair station; 1992 application requested to increase size of existing building and was listed on the application as service station/auto repair. 1994 applied for increase in general repair for emission testing on an application that included the use of towing for the first time. William Donovan pointed out that the change in use has deteriorated the neighborhood with concerns about safety and environmental contamination issues, 20 Union City Road is approx. ½ acre and can't support expanded use in this location. Based on existing use it is not part of the original use in 1962 prior to zoning regulations. Owners are adding to the non-conformity which is not allowed by zoning and causing a negative effect on neighborhood, ongoing complaints, congestion, etc. Fire Marshall has also gotten involved as has the Safety Committee. William Donovan's opinion is that the owners are in violation of zoning law. Maps were also submitted showing the difference between general commercial and design commercial as requested by Chair, Dominic Moschella.
Attorney Michael Broderick, representing Domenico & Franca DiLoreto, agrees with non-conforming use. Auto service station is a lawful use since it was in use prior to regulations. Clients purchase in 1990 and did do some towing for customers to the location at 20 Union City Road and stored vehicles there. Since regulations went to effect in 1962 there have been many changes in society and the Town of Prospect. Motor vehicles have changed since 1962, tow trucks couldn't tow vehicles the same as was done in 1962. Automobile market has changed. Section 8.2 of the Conn. General Statutes protects the right of a property owner to continue the same use of the property prior to the adoption of the zoning regulations. Expansion of a nonconforming use is prohibited under our law, however law makes the distinction between the expansion of a nonconforming use or an increase (intensification) in the amount of business generated by the existing nonconforming use. Reiterated that it is not an expansion but an intensification of use. Atty. Broderick brought up the issue of the town alleging the DiLoreto's violated 230.3 - Mr. DeLoreto stated that boats were hauled when linked to a vehicle. The DiLoreto's are not in the business of hauling, strictly automotive, not looking to store vehicles.
Commissioner Harold Bernier questioned what a strait job truck is used for. Mr. DiLoreto stated it is for preventive maintenance - He doesn't have a straight job truck, has a cargo van for emergency roadside assistance with supplies inside.
Attorney Broderick feels there is not an expansion but an intensification in volume of motor vehicle work. Gas sales & service of motor vehicles is the same as prior to zoning. Reiterated that vehicles, parts & problems are different. As to the effect on the neighborhood - property is zoned commercial, increase in activity is consistent as to what is going on in the neighborhood.
Martin Atkins questioned the expansion - Previously had two tow trucks, presently has eight. Atty. Broderick reiterated that this is not an expansion but an intensification of use. 95% of work is repairs to motor vehicles.
Attorney Broderick referred to 230.3 of regulations - Owners are not in violation, there are just different components since 1962; 230.4 - Regulating use 33%, court limiting increase of volume is unenforceable by law. Section 340 - not applicable - regulations didn't exist prior to 1962. As to size of parcel and 15' access way for safety the DiLoreto's are trying to make sure issues are corrected in the last few months. Environmental concerns of DEP have been satisfied. DEP couldn't find anything in violation.
Suggested that Board hold off on decision to allow members to visit the site.
Carl Graveline questioned the 15' safety buffer - Attorney Broderick indicated safety buffer is not applicable, concerned about the 15' access way but not applicable since the building was built prior to the regulations.
Mary McCormack, 7 Straitsville Road, opposed. Questioned when the attorney last inspected the property & trucks, Miss McCormack feels the location is a junkyard. Also would like to see the DEP report. She has concerns about neighboring wells. William Donovan indicated he has not received an official report from DEP. Miss McCormack indicated that this business is a traffic issue on Schoolhouse Road.
Douglas B. Merriman, 6 Merriman Lane, member of the Safety Committee feels property has not remained the same also feels the problem is the intensification. Issue of construction equipment, if parcel was two acres it would be different, piece is too small. Safety Committee has received complaints about visual obstruction. Feels the intensification is the major problem.
John Sullivan, 38 Summit Road, feels the nature has changed considerably, never remembers any tow trucks. Doesn't feel there are many people at the gas pumps. The owners don't rely on gas sales. Feels it is primarily a towing station. Concerned for the homeowners in the area. Also feels it is a junkyard. Also concerned about the DEP issue.
Donna Marlak, Maria Hotchkiss Road. Beautification of Prospect is important. Concerned about it looking like a junk yard and safety issue concerns. Need to keep town beautiful and wants the DiLoreto's to clean up their property.
Attorney Broderick pointed out that the safety issues are a concern of the owners and have been addressed. Attorney also pointed out that the owners have also purchased the property next door to the station.
Dominic Moschella questioned the difference between towing & service station. William Donovan pointed out that as far as the regulations are concerned service station (gas) allowed in a general commercial zone, towing is not listed in regulations therefore it is an accessory use for a service center, if not listed it is not allowed. Mr. DiLoreto feels that towing and service station go hand in hand. Attorney Broderick pointed out that his clients are doing the same thing as original use and has a general repairers license. Martin Atkins questioned the % of trucks towed - approx. 10-15 %. William Donovan pointed out that intensification of use is legal as it allows for the business to grow but illegal expansion shows expanding into other uses, also the towns ultimate goal is to reduce and eliminate non-conformities all together. Original purpose of station was selling gasoline.
William Donovan suggested members review memorandum submitted by Attorney Broderick and continue the public hearing.
Chairman Moschella pointed out that in 1962 purpose was to service cars, heavy duty tow trucks and big trailer trucks is an issue that needs to be addressed.
Motion made by Harold Bernier, 2nd by Carl Graveline to continue the Public Hearing to May 22, 2001 @ 7:30 P.M. Motion Unanimous
ACTION ON APPLICATIONS:
ZBA Application 1-2001 of Lynda & Roger Malagutti, 23 colonial Drive, seeking a 48 ft. rear line variance for an existing shed. Motion made by Martin Atkins, 2nd by Harold Bernier to approve the 48 foot rear line variance with the provision that adjacent sheds are removed, hardship being location of septic and leachfields. Motion Unanimous
Motion made by Martin Atkins, 2nd by George Havican to adjourn. Unanimous. Meeting adjourned at 9:02 P.M.