ZONING BOARD OF
APPEALS
REGULAR MEETING
MINUTES
May 08, 2007
1. Call to Order:
Chairman Torres called the meeting to
order at 7:37 P.M.
11. Members Present: John Torres, Robert Minch, Barbara Flebotte, Daniel Scully,
Jerry Young, Edward Mack, B.J. Ferro III
Public Hearing was called to
order by Chairman Torres at 7:38 P.M.
111. Public
Hearing
1.
1.
Mohammad Razavi
Secretary, Mr. Scully read
the legal notice. Mohammad Razavi of
P.O. Box 265, Somers, CT is seeking a variance from Somers Code 214-54
requirement for illuminated signs concerning his Pizza restaurant located at 48
South Road, unit #13 and #14 of Southfield Plaza, Somers.
Mr. Razavi was present and
explained that for his restaurant, Mona’s Pizza & Wings, he had requested
all the appropriate permits. He further
explained to the Commission that he had expressed to individuals at the town
hall that he wanted his sign to be “like that of the Plaza Restaurant “. He spent over $3,000 and purchased a sign
that would allow for illumination from within.
It was upon a visit from the inspector that he explained that the sign
Mr. Razavi had purchased could not to be utilized because it did not meet
current regulations.
Chairman Torres explained
that the Plaza Restaurants’ sign that he referred to prior has been internally
lit since 1990 and was “grandfathered in” when new regulations were passed
after its erection. Chairman Torres
also explained that he did have the option of lighting the sign from the
outside like other businesses in that plaza.
Mr. Razavi stated that when the inspector visited the sight he explained
the conditions and regulations he would have to follow if he wished to
illuminate the existing sign using external lighting fixtures.
Unfortunately the only
hardship Mr. Razavi’s case had was monetary.
Although the Commission did feel that there may have been some
miscommunication on both the applicant and that of town hall employees, Mr.
Torres stated that a regulation such as this could not be overturned simply on
a monetary hardship.
No abutters to the business
location were present.
Motion made by
Commissioner Scully, seconded by Commissioner Minch, and unanimously approved
to cease discussion.
Page 1 of 4
After all discussion,
motion made by Commissioner Minch; seconded by Commissioner Young to adjourn
the public hearing. Motion approved
unanimously.
Public Hearing closed at 7:45
p.m.
IV. Regular Meeting
The regular meeting continued
at 7:45 P.M.
V. Minutes
Approval – April 10, 2007
Corrections – April 10, 2007 – Page 1 MEMBERS PRESENT B.J.
“Farrow” to be replaced with “Ferro” Page 2
3. “Marie Theresa Demers”
to be replaced with “Marie Therese Demers”
Motion made by
Commissioner Minch, seconded by Commissioner Flebotte to approve the ZBA April
10, 2007 minutes with above noted corrections.
Motion approved unanimously.
VI. Public Hearing Discussion
1.
1. Mohammad Razavi
After
much discussion, motion made by Commissioner Scully; seconded by Commissioner
Mack and unanimously voted to cease discussion and vote.
The
Commission voted unanimously to deny a variance
from Somers Code 214-54 requirement for illuminated signs concerning Mr.
Razavi’s Pizza restaurant located at 48 South Road, unit #13 and #14 of
Southfield Plaza, Somers.
2. 2. Marie Therese
Demers
Note: Alternate member Jerry Young sat in for
Commissioner Scully for this case. Mr.
Young was present for the hearing phase of the appeal while Commissioner Scully
was absent.
Atty. Conti asked who does
the Commission believe has the burden of proof? Is it an issue of conforming to
nonconforming? These will need to be
considered and will aid in the Commission being able to site whether specific
past cases come into play when deciding on the case before them. He also mentioned equitable estoppel; a
legal principle that prevents a person from asserting or denying something in
court that contradicts what has already been established as the truth. This may
be considered by the Commission. He
would like time to further review the letter presented by Att. Landolina before
he provides any opinion on the statute of limitations.
Commission members opened
further discussion in regards to the continued review of the pubic hearing
appeal from Ms. Demers. The Commission
members had received prior to the May 10th, 2007 ZBA meeting a
lengthy transcript of the prior months meeting. This transcript included additional pieces of information to
further understand and research Ms. Demers appeal such as previous case files
which came before the Board. Mr. Torres
had hoped that this additional information would elicit questions from the
Commission as well as provide a better understanding of what the ZBA Commission
was being requested to do. Attorney
Rick Conti was present to answer questions presented by the Commission members
as well as give his legal
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analysis of further gathered
information/cases and whether he felt they were pertinent to the case before
them. He also was able to speak to the legal issues which were presented at the
last Commission meeting where both Attorney Carl Landolina and Bruce Tyler were
in attendance.
Chairman Torres asked Att.
Conti if he felt that the case concerning Georgewood Road which happened about
2 years ago could be considered similar in nature to the one the Commission was
dealing with now. The first Case was a
cease and desist due to a neighbor complaint, while the latter was a cease and
desist due to the zoning officer’s visit which was not generated by an external
neighbor complaint. He also inquired
whether the ZBA Commission’s “hands are tied” on the case.
Att. Conti explained that he
would take all comments and listen to the discussion of the Commission before
giving his legal opinion. At that point, he was not sure if the information
gathered would help or hinder the Commission’s decision making.
Commissioner Minch stated
that the Demers Home was always used as a “rooming house”. This had been known for many years. Regulations were adopted, rooms were for
rent, and it was owner occupied within all that time.
Commissioner Young has been
living in Somers since 1963 and he explained that the Demers home was always
open as a boarding facility since he could remember. It was for individuals with different needs; some needing
physical assistance due to being aged to those simply needing a room to
rent. Rooming house/boarding house the
terms were interchangeable but the end result was the same and it was owner
occupied to his knowledge as well.
Commissioner Mack explained
that at one time the facility was licensed by the state and then lost its
license. It was at that time that the
regulations changed. Pointing out that
due to these changes in regulation and status that Ms. Demers was now only to
receive compensation from 3 people living on the property and she was currently
receiving monies well over that limit.
Commissioner Flebotte
mentioned that when there was an issue that presented itself i.e. the providing
of meals to some individuals per Steve Jacobs 1992 report, Ms. Demers
discontinued this upon request.
Otherwise the facility had been functioning to her knowledge in the same
capacity for decades.
Chairman Torres added that he
understood why initially the facility was being run as a convulescent home due
to the first owner’s wife being a certified nurse. There were individuals on the premises that were immobile and due
to that, they could house 2 individuals in one room. Adding that in 1995 when Ms. Demers was no longer state licensed
and receiving individuals from state hospitals, the town was aware of this
change in status and didn’t act on this knowledge. Jim Taylor did try to voice that the facility could not continue
as a rooming house, but the town did nothing to enforce this opinion.
Commissioner Flebotte asked
Att. Conti if there was a statute of limitations for which the town has time to
act. Was there a timeframe that the
applicant had to appeal and was that timeframe exceeded? As well, did the town have a timeframe in
which to enforce these changes in status but is now too late to do so because
it has been going on for decades?
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Chairman Torres asked if the
Commission has jurisdiction to make this decision (to support the cease and
desist) or is it out of the Commission’s realm. Att. Conti stated that he would like to review further and
clarify whether it is an estoppels issue or a jurisdiction issue. As he sees it now, the case can go one of
three ways; 1.) The Zoning Enforcement officer had no authority to take such
action 2.) There is unlimited (no time
limit) to the situation which was going on at the Demers location and the ZBA
Commission must take action or 3.) While there was no time limit,
there was a lengthy duration
of continued practice at the above mentioned location. And with that knowledge, although the Zoning
Officer maybe in her right to wish the cease and desist, the situation has gone
on too long and because of that the ZBA Board can not support the decision.
Att. Conti stated that he
felt the last option was where he was leaning, however he felt it was necessary
to continue review of all materials presented to him and only then would he
feel comfortable writing an opinion to the Commission’s inquiries before their
next meeting on June 12, 2007.
Motion made by
Commissioner Mack, seconded by Commissioner Minch, and unanimously voted to
table decision on Marie Therese Demers appeal until June 12, 2007.
VII. Old Business:
None
VIII. New Business:
None
IX. Correspondence:
None
X. Bills:
Motion made by
Commissioner Mack; seconded by Commissioner Flebotte to pay all ZBA bills
including the Journal Inquirer in the sum of $472.20. Motion approved unanimously.
XI. Adjournment:
Motion made by
Commissioner Mack; second by Commissioner Minch to adjourn the meeting. Motion approved
unanimously. The meeting stood
adjourned at 9:02 P.M.
Respectfully submitted,
Jennifer D. Boudreau
Recording Secretary