ZONING
COMMISSION
P.O.
BOX 308
Monday,
January 22, 2007
7:00
p.m.
Town
Hall
I. PUBLIC MEETING
a.
Pending Claims & Litigation, Grower Direct, Inc. vs. Somers Zoning
Commission
Chairman Robert Martin
called the public meeting to order at 7:05pm and the legal notice was
read.
Town Attorney Carl Landolina
provided a history of the involvement between Grower Direct and the Somers
Zoning Commission as it pertained to the pending claim and litigation. He explained that an excavation permit
was received by the owners of Grower Direct Farms to excavate some earth
materials from their property. The
stated purpose of the operation was to prepare the property so that additional
greenhouses could later be constructed on the site. He added that a cease and desist order
was issued to Grower Direct because they had begun the operation without
securing a permit from the Zoning Commission.
He
explained that there were discussions early on as to whether Grower Direct Farms
was exempt from the permit according to Town Zoning Regulations and at the time
it was decided by the owners of Grower Direct that they would come to apply for
the permit, which they did. All of
the permits are renewed annually in June and they reapplied to renew their
existing permit in June of 2006.
The permit was granted with the conditions that operations not begin each
day until 8:30am and no operations on Saturdays. Grower Direct then asked for the Zoning
Commission to reconsider that decision in October or November of 2006. The Commission voted not to change the
hours of operation and a lawsuit was then filed by attorneys on behalf of Grower
Direct Farms.
After the filing of the
lawsuit, Attorney Landolina had the opportunity to speak with the attorneys for
Grower Direct and a possible settlement of resolution was discussed. He then met with this Zoning Commission
in Executive Session to discuss some of the details of the proposed settlement
and it was decided at that time the way to proceed would be to have an open
meeting, discuss the settlement of the law suit, and allow the public to speak
for or against the possible resolution of the lawsuit.
Based upon his reading of
the regulations, and the complaint of Grower Direct, he believes that there are
some legitimate claims in the original complaint that could be made by Grower
Direct supporting their position in the lawsuit. Based upon that fact he recommended to
the Zoning Commission that they consider settling the lawsuit by changing the
condition that was placed upon Grower Direct and allow Grower Direct to operate
beginning at 7:30am, the standard hours of operation included within the Town of
Somers Zoning Regulations.
Len Van Wingerden, 164
Hampden Road, explained that he is the
owner of Grower Direct Farms. He
stated that he did not start a lawsuit, but that he did appeal the decision by
the Commission to limit the hours to 8:30am to 5:30pm because they thought that
this was unfair, restrictive and discriminatory. They have, however, appealed to the
court and the appeal is pending, so there is not presently an actual
lawsuit. He explained that a
lawsuit would cost money to do such things and also Grower Direct Farms was
hoping that by putting on a bit of pressure with an appeal that such a meeting
as this could be held where these issues could be resolved. He doesn’t want the spector of a lawsuit
to hang over the meeting and that being the reason for making the change in the
modification. He wants the change
to be made because there was a mistake in restricting Grower Direct Farms’ hours
of operation. He hopes that the
Commission will understand that it is important for all involved to feel that
they are neutral in the hearing of the comments and that there is an
even-handedness in the decision-making process.
Attorney Landolina stated
that there is indeed a lawsuit involved, because an appeal is actually a lawsuit
and, if it is not settled by the Zoning Commission, it will go forward unless
Mr. Van Wingerden decides to withdraw his appeal. It will go through its normal course and
the town will have to expend legal fees and other things defending its
position.
Irving Herskowitz, 815 Main
Street,
stated that he has been reading the Grower Direct side of the issue in the
newspapers, but he has never heard the Zoning Commission’s side of the
issue. He asked why one person was
singled out. He asked what the
logic behind that decision was in the Zoning Commission’s
viewpoint.
Attorney Landolina stated
that he didn’t feel that such an issue should be discussed in this venue because
the issue to be discussed this evening is to decide whether or not the decision
should be rescinded by the Board and the lawsuit settled.
Chairman Martin stated that
the Zoning Commission’s point of view can be easily found by the public’s
reading of the minutes of past Zoning Commission meetings, and then it is up to
the Zoning Commission to make a final decision after this meeting at the regular
Zoning Meeting.
David Reed, 32 Mountain View
Road,
the Vice Chairman of the Town of Somers Economic Development Commission, stated
that he was here to support the town’s local businesses and he asked that the
Town reconsider the time constraint put on this business and make it an
equitable situation as with the other organizations in town that do this type of
work. He did look at the particular
minutes on June 19 and in the actual voting section it did not state why the
Commission established this special criteria. It didn’t really answer the question as
to why the board made this decision.
He does not really understand why one business would be set apart from
the other businesses within the field.
Everett Morrill, 101
Mountain View Road, stated that he works for
the Town of Somers Public Works Department. He noted that Public Works has to get
sand for the Town in the same area and restricting the hours of operation
effects the hours that the Public Works Department can work as well. If the department has to wait an extra
hour to get trucks through to get sand, it appears unfair to the
department. He added that he
believes that it is important that whenever a gravel bank, or any other business
opens up, everyone should be treated equally and
consistently.
Diane Nelson, 106 Stafford
Road,
commented that even though she hasn’t lived in the area very long, Grower Direct
Farms has always been a great neighbor.
All of the trucks that have come out of the operation have been clean and
do not go fast, there is no dirt tracked onto Hampden Road, and she rarely hears
trucks.
She
feels that an hour may not seem like much time to some people, but in the
construction business, it is. Also,
when someone wants their sand and gravel, if they can’t get it, they will always
go somewhere else to get it. The
town is not supporting its businesses if it can’t make it equal across the board
in terms of competition.
Ed Fedorowich, 232 Stafford
Road,
stated that Mr. Van Wingerden and his family have always been very good
neighbors. Also, about 17 years ago
when the town had a problem with Bruce Wood’s gravel bank and the Gavlak water
issue, Mr. Van Wingerden allowed them to drive through is property so that they
could exit via Hampden Road, which is a much wider road then Stafford Road or
Woods Road, which were the other options.
He would rather be approaching a gravel truck on Hampden Road than he
would on Woods Road. What if Mr.
Van Wingerden decided that he just wanted to get out of the entire business and
closed up his operation and the road?
What would happen to Mr. Woods’ operation? He explained that there are many
problems that could ensue based upon the way the Board has ruled upon
this.
Bob Topier, 208 Hampden
Road,
stated that he has lived in the area about 3 to 3-1/2 years and commented that
he would like to see that all of the business operations within Town are treated
equally. He added that he has been
working in the construction field for 25 years and generally construction
companies operate from 7:00am to 3:30pm.
Restricting someone to start hauling at 8:30am really constricts their
operation.
Leon Dolby, 107 Colorado
Drive,
stated that he does not see how anyone could justify stopping trucks coming from
the sand and gravel operation but at the same time not stopping the very large
trailer trucks which could operate at any time of the day on the same
roads.
Joan Rivard, 74 Maple Ridge
Drive,
stated that she supports making the change back to the town’s normal required
hours. No one business in the same
field should be isolated from another, and all of the Town’s people will have to
pay for a lawsuit. There are
many things someone could complain about in this town. For example, the school busses wake her
up in the morning. The helicopters
from the prison sometimes disturb her.
However, she is not going to sue them because that is part of what living
in this town is all about. She
added that it takes common sense to live anywhere and it seems common sense that
if you have a gravel bank operation, it should have the same hours as any other
operating gravel bank.
Ms
Rivard is part of an organization in town that Mr. Van Wingerden donates flowers
to and she is in and out of his operation through the spring and fall because of
this. She stated that her
organization sees an operation where he waters down the roads to keep the dust
down, the place is immaculate and many other places in town should take a lesson
from this because it is an operation that the Town can be proud of. She added the Commission has placed a
restriction on Grower Direct Farms which many people cannot understand and she
requested that the Commission rescind its original
decision.
Henry Broer, 74 Hampden
Road,
stated that he wanted to address the decision-making that went on at this
Commission dating back to January 2006, and added that any reading of the
minutes, including all of the comments of those living on Hampden Road, can
explain why the decision was made.
He stated that he hasn’t heard anyone who lives on Hampden Road south of
Growers Direct speak in favor of it.
He stated that he is opposed to the continuing high volume of truck
traffic on Hampden Road as he has stated and written to the Commission, the Town
Planner and the Board of Selectmen.
Mr.
Broer added that it is only the increased traffic that became obvious about a
year ago and added that contrary to Mr. Van Wingerden’s attempts to confuse the
issue by including all gravel operations occurring at this site, it is the Van
Wingerden Gravel Operation operating on his 152 acres, easily identified by his
use of Holden Trucks, that they have complained about. Mr. Broer added that Mr. Van Wingerden
now has chosen to challenge the Zoning Commission rules by going to court and
suing the Commission and the Town.
He added that he wishes to address some of the 20 issues Mr. Van
Wingerden has brought before the court listed in the
deposition.
Mr.
Broer began by quoting Item 4 on the Depositon as follows: “The Commission is bound by the
regulations which it has adopted.”.
He added that Regulation 214-102, paragraph (f) states that the
Commission may “place, on any special use permit, whatever conditions the
Commission may wish to reasonably deem necessary.”. He stated that he has no doubt that the
Commission has applied this carefully and conscientiously at many meetings and
discussions.
He
then addressed Item 5, Bias or Unfair Treatment. He stated that any reading of the
minutes of the past 2½ years clearly demonstrates that this Commission has
diligently avoided any bias or unfair treatment.
He
stated that Item 6 mentions the hours of operation prior to June 19, 2006 and
Item 7 discusses public hearings held for the special use permits for earth
removal. He stated that Item 8
discusses that representatives for the Plaintiff did not attend the hearing and
added that Mr. Van Wingerden has not attended several public
hearings.
Item 9 states that,
“unbeknownst to the Plaintiff, the Commission reduced its hours of operation”
and that Mr. Van Wingerden states that he thought the new hours were just a typo
and he chose to ignore it. Mr.
Broer added that Mr. Van Wingerden has continued to violate the hours of
operation continually since that time.
In
reading the minutes, Mr. Broer stated that he never sees reference to the many
emails he has sent to the Town documenting many abuses of the operating hours or
the letter he wrote to the Chair of the Commission on August 29,
2006.
The
Plaintiff brought an application to reinstate the starting time to the original
use permit even as he knowingly violated the terms of the existing permit. The Commission had previously granted a
permit with an earlier starting time.
The Commission, after several public hearings on the matter, all through
2006, decided a change in operating hours was in order.
Item 14 of the Deposition
states that there was a “depreciated and/or destroyed the value of its
property”. Mr. Broer asked how this
was so and added that tons of sand and gravel have been removed over the past 2½
years.
With respect to Item 16, he
stated that contrary to a requirement of its regulations, any reading of the
regulation gives the Commission authority to attach special conditions to a
special use permit.
With respect to Item 17c he
quoted from the Deposition, “The Commission attached a condition it did not have
the power to do.”. He added that
Regulation 214.102(f) states that it does have the power.
With respect to Item 17e he
quoted: “The Commission ignored the
evidence presented by the Plaintiff at the hearing.”. Mr. Broer asked how could the Plaintiff
say this when he spoke, as well as 7 members of the
public.
17
n-o addressed the gist of what the lawsuit holds, in his opinion. It stated, “Does the Town have a concern
as it relates to neighborhood and the citizens who live
there?”.
He
stated that Items18 and 19 declare that the ordinance is vague and
uncertain. He feels that to him,
they are not vague and uncertain, but a court will have to decide
that.
He
asked that the town not be swayed because Grower Direct is the second biggest
taxpayer in town. And to remember
that it’s October 2006 minutes regarding the Worthington Pond Farms Decision
states that the Court agreed that the Commission does have leeway in granting
Special Use Permits.
He
quoted the first sentence of Mr. Van Wingerden’s letter dated 9/3/2006 which
stated: “for some 2½ years we have
been moving excess earth from our land.” and added that during this time, Mr.
Van Wingerden had no permit to do so.
He
added that it is critical that the Commission realize that the total number of
trucks, other than Holden Trucks, using the gravel pits wouldn’t equal the
number of Holden Trucks excavating on Van Wingerden’s
property.
He
commented that he has sent at least a dozen emails to the Town Planner and the
First Selectmen with the numbers of trucks and the before 7:30am starting times
of them. He submitted examples of
this and a copy of his letter.
A
letter dated January 12, 2007, and received January 16, 2007, was received from
John and Laura Jacewicz, 99 Hampden Road and read into the record
in support of granting Grower Direct Farms’ request for the change. They stated that the vehicles from
Grower Direct Farms make no more noise than those vehicles that routinely use
Hampden Road and the road into the business is well maintained and generally in
a state of good repair. They added
that the traffic traveling along Hampden Road is not extensive compared to the
regular traffic traveling along the roadway.
Mrs. Carson stated that no
other correspondence was received for the public meeting. A motion was made by Jill Conklin,
seconded by Anita Calder, and unanimously voted to close the public meeting at
7:44 p.m.
At
7:45pm, a motion was made by Wes Smith, seconded by Jill Conklin, and
unanimously voted to add to the agenda EXECUTIVE SESSION: Pending Claims & Litigation, Grower
Direct, Inc. VS. Somers Zoning Commission and to invite the Zoning
Commissioner, Town Planner, and Town Attorney.
The
Commission came out of Executive Session at 7:59pm.
II. CALL TO ORDER
Chairman Robert Martin
called the regular meeting to order at 8:00pm. Members Anita Calder, Jill
Conklin, Rob Martin, Wes Smith and Alternate Member, Dan Fraro (seated for Peter
Klein), were present and constituted a quorum. Town Planner Patrice Carson was also
present.
III. INTERVIEW
DESIGN REVIEW BOARD CANDIDATES
– There were no
new candidates present.
IV. MINUTES
APPROVAL
The
minutes from November 20, 2006 and December 27, 2006 were
deferred.
A
motion was made by Anita Calder, seconded by Jill Conklin, and unanimously voted
to approve the minutes of the January 8, 2007 minutes as
written.
V. OLD BUSINESS
a.
Discussion/Possible Decision:
Pending Claims & Litigation, Grower Direct, Inc. vs. Somers Zoning
Commission
A
motion was made by Wes Smith, seconded by Anita Calder and unanimously voted to
authorize the Town Attorney to settle the litigation of Grower Direct Farms Inc.
vs. Somers Zoning Commission by rescinding the condition of the present Special
Use Permit limiting Grower Direct Farms’ hours of operation from 8:30am to
5:30pm and reinstating the hours of operation in Section 214-71.D. of the Somers
Zoning Regulations.
b.
Other
– There was no Old Business.
V.
NEW BUSINESS
a.
2007/2008 Budget
Mrs.
Carson reviewed the budget for the upcoming year, noting changes from last
year. There has been a decrease in
the hours for the Zoning Enforcement Officer. An increase has been included for
instruction due to the fact that new members have been placed on the Commission,
but over all the Commission’s budget has actually
decreased.
A
motion was made by Jill Conklin, seconded by Dan Fraro, and unanimously voted to
approve the 2007/2008 Budget as recommended and submit it to the Boards of
Selectmen and Finance.
b.
Other
– There was no other new business.
VII. DISCUSSION: PLAN OF CONSERVATION AND
DEVELOPMENT
No
new information was presented on this item.
VIII.
STAFF/COMMISSIONER
REPORTS
No
reports were given. The Zoning
Enforcement Report will be emailed to Commission Members.
IX.
CORRESPONDENCE AND BILLS
The
Town has received notice that the Department of Environmental Protection has
issued a general permit for utility and drainage installation for sanitary sewer
at the Somers Correctional Complex in the Shaker Road
area.
There
will be an open community forum on January 29, 2007 at 7:00pm at the High School
regarding looking for a new school superintendent.
Mrs.
Carson reported that a bill has been received from the Journal Inquirer for
$283.32 for the notice for the November 20, 2006 public hearing and
meeting. A motion was made by Anita
Calder, seconded by Jill Conklin, and unanimously voted to pay the bill as
presented.
A
motion was made by Jill Conklin, seconded by Blinky Calder and unanimously voted
to adjourn the January 22, 2007 Zoning Commission meeting at
8:30pm.
Respectfully
submitted,
Wes
Smith, Secretary
Robin Timmons, Recording Secretary
MINUTES ARE NOT OFFICIAL
UNTIL APPROVAL AT A SUBSEQUENT
MEETING.