Public urges P&Z to rethink

SALISBURY — At a Planning and Zoning Commission public hearing Tuesday, Aug. 9, opposition was the prevailing sentiment expressed. Members of the public who were there seemed generally unhappy with a proposed change in the town’s zoning regulations that would eliminate special permits for vertical expansion of nonconforming buildings in the entire town.Mat Kiefer asked how many nonconforming buildings could be turned into affordable housing, and inquired if the commission had done an inventory of nonconforming structures in town.Upon receiving a negative answer from the commission members, Kiefer asked, “Why not?”He continued, saying that creating apartments in nonconforming buildings “would allow us to maximize our villages.” The town of Salisbury has five villages: Salisbury, Lakeville, Taconic, Lime Rock and Amesville.The proposed change to the regulations, on the other hand, would “put more pressure on open spaces,” he said.“Why can’t we think a little harder about this? I’m not in favor of this at all.”Kiefer finished his remarks by offering to take commissioners on a walk, to point out the nonconforming structures.Commissioner Jon Higgins commented that the issues Kiefer raised are “exactly what we would have done in the past.” Higgins has expressed his concern that the commission has been moving too quickly on the matter at recent meetings.Mark Capecelatro, an attorney who said he was speaking on behalf of Lakeville residents Irwin and Mary Ackerman, a “group of citizens” and for himself, spoke at length.Part of his presentation echoed Kiefer’s remarks. Armed with four maps from the Lake-ville, Lime Rock and Salisbury villages, he pointed out a large percentage of buildings — mostly homes — that are nonconforming.“If the regulation is adopted then these properties are frozen in time,” he said. “What they are is all they can be.”He said that the existing special permit process is “not a blanket grant,” although when pressed later by P&Z Chairman Michael Klemens for an example of a special permit for vertical expansion of a nonconforming structure being denied, he couldn’t name one.Capecelatro described the special permit process “as burdensome,”citing requirements such as A2 surveys, mapping of ground elevations, comprehensive site plans — and in the Lake Protection Zone, requirements for erosion and sediment controls, storm water runoff and landscaping plans, the possibility of needing a separate special permit from the Conservation Commission in the event of soil disturbance within 100 feet of a lake (or wetland).The attorney concluded that the special permit process ensures protection of neighbors and water quality, and noted the process gives the commission wide latitude in adding additional safeguards.As to the idea expressed recently by Klemens, that these particular special permits are really variances and therefore the province of the Zoning Board of Appeals (ZBA), Capecelatro said that special permits and variances are different legal concepts created by different statutes, and noted that establishing a “hardship” for a ZBA variance is no walk in the park.ZBA variances cannot be self created (i.e. adding an extra bedroom for an expanding family), he said. A hardship finding rests on some unique characteristic of a property that makes it impractical to apply zoning regulations.He called it “pure fantasy” to believe the ZBA would grant variances based on a “compelling personal case.”Klemens, referring back to the so-called Poland Report, a 2010 study of the town’s land use procedures that was critical of a lack of consistency and predictability in applying zoning regulations, asked if the current special permit process is predictable.Capecelatro replied that in the last two years “there has been no certainty except for the uncertainty.”Klemens asked if there was an expectation on the part of applicants that special permits would be granted.Capecelatro said he would not tell his clients that getting a permit is “a sure thing.“It creates a possibility, and nothing more than that.”Capecelatro wound up by noting that two versions of the amendment have failed to get a majority vote from the commission. The first was an amendment proposed by the Lake Wononscopomuc Association last year that would have prohibited expansion of nonconforming homes in the Lake Protection Overlay Zone (which extends to 300 feet from the water) and eliminated the special permit process.That amendment was voted down, and the commission’s own version failed in a vote June 21 in its presented form — first covering 300 feet from the water, and a second time, in a version covering 75 feet from the water.Capecelatro described the current proposal as “essentially a regurgitation” of the previous ones, and said his clients were concerned that the commission was “taking a third bite at the apple,” and that the proposal is a “smokescreen” to eventually get a ban in the lake zone.Klemens reacted quickly to that, saying that the issues around each previous proposal were “fundamentally different” — the lake assocation’s amendment, the result of a petition, had to be voted up or down as written and could not be amended, and the second version ran up against the questions of variance versus permit and whether a vertical expansion increases nonconformity.To use the apple-biting analogy “is unfair and inflammatory,” he said.Bill Littauer, president of the Lake Wononscopomuc Association, said his organization supports removing the special permit only in the lake zone. Three letters were read into the record, all in opposition.Georgia Petrie said she thinks the commission is moving in the right direction, with the passage of a six-month moratorium on special permit applications for vertical expansions within the Lake Protection Overlay Zone after a contentious public hearing Tuesday, July 19.That gives the commission time to consider, she said.“You’re making good progress,” she said. “Just don’t rush, that’s all.”The hearing was continued to Sept. 20.