Planning\ZBA\2017\09 - September 27\Agenda 27 SEP 2017.Docx

$Planning\ZBA\2017\09 - September 27\Agenda 27 SEP 2017.Docx$

AGENDA ZONING BOARD OF APPEALS LINCOLN CENTER HEARING ROOM SEPTEMBER 27, 2017 7:00 P.M.

A. PUBLIC HEARINGS

CHAMPAGNE WEST, LLC - application #2017-067 - Request a Certificate of Location Approval under Connecticut General Statutes 14-54 for a used auto sales and service facility at 259 Adams Street, Industrial zone.

TOPPDDOGDAYCARE – application #2017-074 – Request a use variance of Art. II Sec. 16.13 to allow a dog daycare at 1404 Tolland Turnpike, Industrial zone.

KATHLEEN & FERNANDO ARTEAGA – application #2017-077 – Request a variance of Art. IV Sec. 14.01 and a variance of Art. II Sec. 1.03.04 to allow the front and side yards of the property to be used for the keeping of horses and for the barn location at 278 Hackmatack Street, Rural Residence zone.

B. BUSINESS MEETING

1. Consideration of Public Hearings

2. Approval of Minutes  July 26, 2017 – Public Hearing, Business Meeting

3. Acceptance of New Applications

KIMBERLY PATULAK - application #2017-078 - Request a use variance from Art. II Sec. 16.13 to allow therapeutic massage practice at 642 Hilliard Street, Industrial and Rural Residence zones.

MANCHESTER HISTORICAL SOCIETY – application #2017-079 – Request a use variance from Art. II Sec. 4.01 to allow a museum at 495 Middle Turnpike East, Residence A zone.

HARRY W. HOOVER – application #2017-082 – Request a yard variance of Art. II Sec. 5.01.01 for 4 +/- feet for a front porch (20 foot minimum front yard required) at 91 Wetherell Street, Residence B zone.

4. Other Business

R:\Planning\ZBA\2017\09 - September 27\Agenda 27 SEP 2017.docx

TOWN OF MANCHESTER LEGAL NOTICE

The Zoning Board of Appeals will hold a public hearing on September 27, 2017 at 7:00 p.m. in the Lincoln Center Hearing Room, 494 Main Street, Manchester, Connecticut to hear and consider the following applications:

TOPPDDOGDAYCARE – application #2017-074 – Request a use variance of Art. II Sec. 16.13 to allow a dog daycare at 1404 Tolland Turnpike, Industrial zone.

LABYRINTH BREWING COMPANY, LLC – application #2017-076 - Request a variance of Art. IV Sec. 9.02.01 to allow processed aggregate on the parking lot (bituminous or masonry concrete required) at 126 and 148 Forest Street, Historic zone.

At this hearing interested persons may be heard and written communications received. Copies of these petitions are on file in the Planning Department and may be inspected during normal business hours.

James R. Stevenson, Chair Zoning Board of Appeals

R:\Planning\ZBA\2017\09 - September 27\Legal Notices\PH Notice 27 SEP 2017.docx

Town of Manchester, CT

Level A Aquifer Protection Areas

Overlay Zone

Wetlands

Manchester GIS

Date: 9/20/2017 Town of Manchester, CT DISCLAIMER: This map is compiled from other maps, deeds, dimensions and other sources of information. Not to be construed as accurate surveys and subject to final changes as a more accurate survey may disclose. NOTES:Original planimetric and topographic data were compiled by stereophotogrammetric methods from 1 inch = 527 feet photography dated April 1999 in accordance with ASPR accuracy standards for 1inch = 40ft large scale Class I mapping. The updating of the GIS data is performed by the GIS/Maps & Records Unit on a continual µ basis utilizing the best and most appropriated sources available. Author:

MINUTES OF PUBLIC HEARING HELD BY THE ZONING BOARD OF APPEALS LINCOLN CENTER HEARING ROOM DRAFT JULY 26, 2017

MEMBERS PRESENT: James R. Stevenson, Chair Albert Gionet, Vice Chair Robert Haley, Secretary Armando Darna

ALTERNATES PRESENT: Matthew Peak, Sitting

ABSENT: Edward Slegeski John Topping Sandra DeCampos

ALSO PRESENT: Renata Bertotti, Senior Planner James Davis, Zoning Enforcement Officer Nancy Martel, Senior Administrative Secretary

The Chair opened the Public Hearing at 7:00 p.m. The Secretary read the legal notice for the application when the call was made.

WATERSTONE RETAIL DEVELOPMENT, INC. – Application #2017-043 – Request removal of a previous condition of approval of a variance #2016-070 that no wall sign be located on the building above 40 feet and 434 Tolland Turnpike (formerly 444 Tolland Turnpike), General Business zone.

Attorney Robert DeCrescenzo, Updike, Kelly & Spellacy, 100 Pearl Street, Hartford, Connecticut, attorney for the applicant, introduced himself. He explained the applicant is revisiting the variance issued by the Zoning Board of Appeals on June 22, 2016. He said at that time, the applicant sought and received a variance for the building height. The ZBA found at that time that there was a hardship to support that variance, he stated. Attorney DeCrescenzo detailed a condition of the variance which stipulated that the wall sign could not be more than 40’ from ground elevation of the building. At that time, he said, the interior design of the building had not been completed and some of the other dimensions inside the building were not yet completed. He explained that the applicant is seeking a removal of that condition because, without that condition, the proposed building sign elevation of 53’ 9” does meet the requirements of the zoning regulations. Attorney DeCrescenzo stated the applicant would not need a variance to locate the sign depicted on the plan at 53’ 9”. He went on to state that the elevation at Tolland Turnpike is 178’. The building elevation is 164’, making the building elevation 14’ below the elevation of Tolland Turnpike. The front of the building is 850’ from Tolland Turnpike, he explained, and the sign elevation that the applicant is requesting, 53’9”, would actually be 39’9” higher than the elevation of Tolland Turnpike.

Mr. Stevenson questioned whether the sign will be illuminated.

ZBA – PH – 7/26/17 - 1 Mr. Tom Gillespie, Vice President of Real Estate and Construction for Bob’s Discount Furniture, 428 Tolland Turnpike, Manchester, Connecticut, stated he would not expect the wall sign to be illuminated as signage on the stores would be. He said the applicant has not discussed the hours of illumination for the signage, although it would not be 24 hours.

Mr. Stevenson questioned whether, if the application were approved, the applicant would agree to a condition that the sign would not be illuminated.

Mr. Gillespie surmised that, as long as it matched what is done at the retail store, the applicant may be fine with that.

Mr. Stevenson asked what is done with the signage at the retail store.

Mr. Gillespie replied the sign is usually illuminated for an hour past the store’s closing. The store closes at 10:00 p.m., he said, and associates are there past that time, so the light usually goes off at 11:00 p.m.

Attorney DeCrescenzo stated that the sign will be illuminated channel letters, typical of office building signage. There are no lights shining on it; it’s illuminated from inside, he explained, and the size of the sign, 300 sq. ft., meets the regulations. Attorney DeCrescenzo pointed to the depiction of the building’s location on the site, 850’ from Tolland Turnpike. He further explained what other structures are in the immediate area, including a self-storage building and the Bob’s Discount Furniture retail store. He further pointed to the new medical office building and the East Point building, both of which are much higher in elevation than the applicant’s building. The building sits below the street and 850’ from the street, behind five large commercial buildings, Attorney DeCrescenzo stated, and it is the applicant’s belief that the additional 13’9” in height for the sign, given where it will be placed, will not cause any hardship to the character of the adjoining area. He further stated it will be the least visible sign in this collection of commercial buildings. Mr. DeCrescenzo displayed a photograph taken from I-84 giving an idea of where the building sits in relation to the highway and further pointed to the new medical office building, the self-storage building, and the retail building, which has been in existence for a long time. He went on to depict the new corporate headquarters, again demonstrating that there is a compelling need to have a sign at 53’9” to be visible as if it were at 40’, and it will not be entirely visible from the highway or Tolland Turnpike. Attorney DeCrescenzo reiterated that the building is low and well off the road, and it is the applicant’s opinion that the effective height of the sign is really 39’9”, whereas all the other signs on the commercial buildings in the adjoining area are at a much higher elevation above Tolland Turnpike.

Attorney DeCrescenzo pointed to a depiction of where the sign would be placed at both 53’9” and 40’. At the prior ZBA meeting, it was not known that the conference room for the corporate headquarters would be almost completely obscured by the signage if the sign were located at 40’. However, locating the sign at the 53’9” elevation enables it to be just above the ceiling height of the interior conference room, he said. Additionally, according to Attorney DeCrescenzo, the 53’9” elevation is compliant with zoning regulations, and therefore, the applicant is seeking a removal of a condition that was placed on the earlier variance. The hardship has already been demonstrated on the 2016 variance, he said, and the applicant is not asking for a new variance, not doing any damage, not enlarging the variance, and not enlarging the hardship.

ZBA – PH – 7/26/17 - 2 Mr. Peak sought clarification of whether something changed in the building since the application was made for the original variance in 2016. He confirmed that if the sign were at 40’, it would be blocking the windows in the conference room, and questioned if that was a change in the design development after the variance application last year. He questioned if the conference room windows appeared in the course of construction and were not part of the original plan. Attorney DeCrescenzo restated that, when the applicant appeared before the Board in 2016, the interior design layout of the building was not complete. Thus, the conference room location had not been identified. He said that at that time, the applicant stated they did not have a sign package completed and the sign package would be fully compliant with the regulations, i.e., the applicant would not need a variance to support the sign package, which is still true today. Attorney DeCrescenzo explained that the sign package was completed only two months ago. He stated that as it turned out, the interior design developed in a way that the conference room was placed in the front of the building right behind the 40’ elevation.

Mr. Peak questioned whether the applicant perceived that the sign would be placed lower on the building.

Attorney DeCrescenzo explained the applicant did not think the 40’ elevation would interfere with the interior use of the building, nor were they focused on signage at that time. At that time, he stated, the applicant was trying to get the building designed and in the ground. However, he said, as the building was designed and developed, it became clear just how far off the road the building would be and how far down in elevation it is from the adjoining street. Attorney DeCrescenzo pointed out that, with the trees and the other buildings, the sign at 40’ will not be as visible as any of the other signage in the area; there are other buildings and vegetation between that sign and Tolland Turnpike and the highway. He pointed to the plan of the building’s elevation and stated that the location where the sign company plans to install the sign is the logical location. He explained the sign is conforming in size, there is only one wall sign, and in every respect, the sign is in conformance with the regulations. However, he noted, it is a condition of the variance that would force the sign to be dropped down almost 14’ into basically the middle of the building.

Mr. Peak noted that, in the minutes from the hearing on the original variance application, the attorney testified that, because of this elevation drop, the building would be perceived as 40’. In addition, he stated, from this presentation, it looks as if the building was built consistently with what the applicant testified to a year ago, i.e., it is about a 14’ drop. Mr. Peak said, in his opinion, the reason the Board approved the variance to allow the building to be 54’ was it would look like it was a 40’ building from the road.

Attorney DeCrescenzo confirmed that the building looks like a 40’ building from the road. He said the effective elevation of a sign located at 40’ would be 26’ because the building is 14’ below the street. A sign at the proposed height of 53’9” would be perceived, when standing on Tolland Turnpike, as having the same elevation as a 40’ sign, because the building is 14’ below grade, he said. He pointed to the East Point and health center signs, which are higher because Tolland Turnpike actually goes up to the intersection. Attorney DeCrescenzo stated the applicant is asking to put the only wall sign where the regulations would allow it to be located, and the condition of the variance is preventing that at the current time.

Mr. Peak stated that in reviewing the previous minutes, it seems as if one of the concerns expressed by one of the Board members was a question of what would prevent the applicant

ZBA – PH – 7/26/17 - 3 from bringing in fill, leveling the property, and putting the building up to 55’ above ground level. He noted that it seems as if that concern did not happen and it has been built on target.

Attorney DeCrescenzo affirmed that was not done and, in fact, the building looks a little lower than anticipated on the site and as if it is down in a hole. He explained that the Board was given the best information the applicant had a year ago based on the state of the development of the design. In addition, in his opinion, the minutes reflect the fact that it was stated the applicant would come back with a sign package, not knowing where it would be or how it would affect the building, and that the applicant would make sure that the sign package conforms to the regulations, which it does.

Mr. Peak asked the staff what the significance of the 40’ condition was. He believed that the tallest building could only be 40’ in that area and there was a sense that the sign should not be any higher than what the traditional buildings were. He questioned what the purpose of the condition was.

Mr. Stevenson stated there had been complaints. Members of the public attended the meeting for the health center, which received approval for a height variance, he said, and there were complaints from the neighborhood off of Avery and Deming Street, which appear to be significantly higher, that there was light pollution coming off I-84 into their neighborhood. Mr. Stevenson explained that residents of those neighborhoods came to a couple different hearings about variances for signs in that area and stated that it is like daylight over there. When they look down into their neighborhood, he said, it is illuminated by light pollution coming off on the other side of the interstate and that is the reason that the Board imposed that height limitation on signs.

Attorney DeCrescenzo stated the applicant went to that neighborhood and tried to gauge what the visibility was from that area.

Mr. Gillespie depicted the medical office building and East Point. He pointed to the Avery and Deming Street neighborhoods off of Route 30. He stated that in the summer, nothing can be seen. Mr. Gillespie noted the angle of this building and the fact that the building is behind others and lower. He explained that the light pollution being mentioned is facing I-84 and the applicant’s building is turned almost 90˚ from that.

Mr. Stevenson pointed out the new condominiums and said, in his opinion, the applicant’s sign would face right into that new development.

Mr. Gillespie agreed that it would. However, referring to the issue in the Avery and Deming neighborhoods, they will not see the sign.

Attorney DeCrescenzo stated that even with a sign at 53’9”, because the self-storage facility is in the way, residents of the condominiums are not going to see a material difference between 53’ 9” and 40’.

Mr. Gillespie pointed to the building that blocks the sign.

Mr. DeCrescenzo stated that when coming down in the main driveway and going toward the main driveway to the retail store, the road turns and goes down the hill to the new headquarters building.

ZBA – PH – 7/26/17 - 4

Mr. Stevenson asked if the applicant would agree with the condition that the sign would not be illuminated.

Mr. Gillespie stated he was not sure they would agree. In his opinion, all office building signs at night, within the timeframes of operation, would be required to enable visitors to find the building and that would be a hardship.

Attorney DeCrescenzo suggested a limitation on the hours.

Mr. Stevenson noted the office building would probably be open until 5:00 p.m. and suggested 8:00 a.m. until 5:00 p.m.

Mr. Gillespie questioned whether anyone has received any complaints on the store’s sign.

Mr. Stevenson reiterated there were approximately a couple hundred citizens that live off of Avery and Deming streets that have complained about the whole area being illuminated.

Mr. Gillespie explained he was referring to the condominium side.

Mr. Stevenson reiterated those condominiums are brand new.

Mr. Gillespie explained that it is facing that direction but it is hidden behind all the trees.

Mr. Haley asked if there would be any retail business coming into this building.

Mr. Gillespie replied there would not.

Mr. Haley asked how many employees go to the headquarters building every day.

Mr. Gillespie explained that approximately 85% of the company’s corporate employees work at that building.

Mr. Haley requested confirmation that those employees are assigned there and they show up every day. He further questioned what walk-in traffic the applicant is worried about losing because the sign is not high enough. Mr. Haley stated he cannot see the hardship, as it is a building employees are coming to every day and they do not have to find the sign.

Mr. Gillespie explained that vendors and outside people visit daily. Currently, they are going to the store because the corporate offices are upstairs.

Mr. Haley asked if they could not find it without the sign.

Mr. Gillespie stated an office building would have a sign.

Mr. Haley described signs on Main Street that are 12’ high and people find a way to those businesses. He was curious why the sign has to be so high for people to find the headquarters building, when the Bob’s store is next to it and they see that sign. He stated he did not know why the sign has to be bigger if nothing is being sold at that location.

ZBA – PH – 7/26/17 - 5 Mr. Gillespie stated part of the issue is that the location of the sign on the building should be over the main entrance.

Mr. Haley reiterated that when the variance was granted with the condition, the applicant stated the design had not been done yet, though the applicant was aware of the condition.

Mr. Gillespie confirmed the design had not been done yet.

Mr. Haley restated that the applicant realized there was a condition on the sign.

Attorney DeCrescenzo stated that if the removal of the height condition was granted, the applicant could agree to a time limitation on the illumination of the sign. He further explained that the applicant wants to adhere to the strict letter of the zoning regulations in terms of the sign height, but is looking for removal of the condition. The applicant is not looking for an additional variance, Attorney DeCrescenzo stated, nor offering an additional hardship. The removal of the variance is not substantially inconsistent with the effect of the Town Plan of Conservation and Development because the proposed location of the sign is, in fact, consistent with the zoning regulations, as is the entire sign package that was submitted to Zoning, he said.

Ms. Bertotti stated that Staff reviewed this application for its technical merits. She stated the Board granted the previous variance with the condition as it is under the regulations. There are not any provisions that say how high on a building a sign can be located. So, as stated in her memo, were it not for the condition of the previously-granted variance, this application would not have been necessary. However, since the condition has been placed, the applicant must now obtain a removal of that condition from the Board in order to have a sign any higher than 40’.

Mr. Stevenson agreed, though if the Board did not grant the height variance, the applicant could not have the sign at 53’9”. That is what the Board based the decision on, he stated.

Ms. Bertotti stated the building would be 40’ if the height variance had not been granted. She added that, under the changed sign regulations, signs that are backlit in any way are not allowed; the only illumination that would ever be allowed here without a variance would be a letter illumination.

Mr. Peak stated he was trying to understand the light pollution issue. He questioned whether a backlit sign has any other impact on light pollution than another form of sign that is not allowed.

Mr. Davis explained that the idea behind a backlit sign is that the whole rectangular or square shape is illuminated, though that does not apply here, because they are channel letter signs.

Mr. Peak questioned whether the signs that the residents were complaining about were backlit signs, or if backlit signs are not allowed at all.

Mr. Stevenson stated that in general, the residents stated that they look over the interstate and the light reflects back into their neighborhood. He said they did not specify a specific sign.

Mr. Davis explained that, in an attempt to address some concerns that were brought up, not necessarily for this particular area or this address, just throughout town, regulations were changed so that white broadcast lights were eliminated and only the message would be illuminated at night.

ZBA – PH – 7/26/17 - 6

Mr. Peak questioned putting a condition on the removal of a condition. He asked, if the Board were to remove the condition as the applicant is requesting, but then apply another condition to say that the sign illumination has to be turned off at 6:00 p.m., if that would be enforceable or difficult or impractical to enforce.

Mr. Davis stated it would be a modification of the condition and it would be enforcalbe.

Mr. Stevenson noted there were no members of the public to speak.

Mr. Gillespie stated the applicant has other signs on the property, including a large pylon sign, which is the old design with the light pollution, as well as the entrance directory sign, which is a box sign with the white background. He explained that they are changing all those to diminish light pollution. He stated that this is not a part of this application, but there is existing signage that they are spending the capital to change out. Mr. Gillespie said they have those permits already. If the Board chooses to impose hours of operation, he said, they are not against that, as long as it is reasonable. For the applicant, the sign is more for identification of the building as the corporate home office.

Attorney DeCrescenzo said that what Mr. Gillespie is saying is, if the applicant had a choice, they would prefer the 53’9” height with unlimited illumination. However, if the Board wants to modify the condition to allow the new height but restrict the hours of illumination, that would be fine.

The Chairman closed the public hearing for this application.

LABYRINTH BREWING COMPANY, LLC – Application #2017-044, 049 – Request a use variance of Art. II, Sec. 18.02 to allow a food truck and a variance of Art. IV, Sec. 9.03.26 to allow 46 parking spaces (47 spaces required) at 126 and 148 Forest Street, Historic zone; and Application #2017-045 – Request a variance of Art. IV, Sec. 9.02.01 to allow a gravel parking lot (bituminous or masonry concrete required) for two years at 126 and 148 Forest Street, Historic zone.

Application #2017-044, 049 – Request a use variance of Art. II, Sec. 18.02 to allow a food truck and a variance of Art. IV, Sec. 9.03.26 to allow 46 parking spaces (47 spaces required) at 126 and 148 Forest Street, Historic zone.

The Chairman described the first two variances for the food truck and the parking, which go together, and then the separate variance for the gravel parking lot, which will be considered separately.

Attorney Michael Dunshee, 135 East Center Street, Manchester, stated there are three variances. He explained that the first variance is to allow a food truck in the parking lot from the hours of 12:00 p.m. to 6:00 p.m. on Saturday, 12:00 p.m. to 5:00 p.m. on Sunday. During those limited hours, he stated, the applicant is seeking a variance directly tied to that, to allow 46 instead of 47 parking spots, because the food truck would be taking a parking spot as described on the map.

Attorney Dunshee stated that when he received the responses from staff, most were addressed. There will be no additional signage for the food truck, no increase in traffic flow is anticipated, and the food truck will essentially service patrons of the brewery, he said. Attorney Dunshee

ZBA – PH – 7/26/17 - 7 explained that it is quite typical for brewpubs to have food trucks on busier days for a few hours; it is something patrons expect. He said in other areas in town nearby where food trucks can come, the disadvantage is that (a) there is no kitchen and (b) they cannot have a food truck for establishments without kitchens.

Mr. Stevenson stated that in Ms. Bertotti’s memo of July 20, 2017, there are four requirements outlined. He questioned whether the applicant has any issue meeting those requirements.

Attorney Dunshee stated they would meet all those requirements.

Mr. Gionet asked what type of food truck will be utilized; i.e., size, what it looks like, and whether it would be a push cart.

Attorney Dunshee stated it would not be a push cart. It would be a mobile food truck, he said, one that would fit in a standard-sized parking lot. He stated it would not be one in particular; it will be rotating.

Mr. Chris Walnum, Labyrinth Brewing Company, 148 Forest Street, Manchester, Connecticut, stated that the food trucks would not be something that the applicant would run or own. It is very common for food trucks to travel between wineries and breweries throughout the state and park in their parking lots and offer food service to their customers. Obviously, if it would not fit in the space, the applicant would not be able to facilitate it, so it would have to fit in that designated area.

Mr. Gionet restated that the applicant would take up one parking space for the food truck. He questioned where people would stand, and whether they would stand in another parking place.

Mr. Walnum indicated on the plan that patrons would approach between the 5th and 6th space.

Mr. Gionet stated the food truck would take up two spaces, one for the truck and one for the customers.

Mr. Walnum stated that was a possibility.

Mr. Gionet questioned whether there would be a service to bring food back into the brewery.

Attorney Dunshee stated there would not be significant overflow as generally with food trucks, people are going to get their food and bring it back inside. In his opinion, there would not be a significant overflow.

Mr. Gionet reiterated the customers will stand around waiting for it.

Attorney Dunshee agreed that patrons will stand waiting as it is a general food truck service.

Mr. Gionet asserted that if six people are standing, it will take up another parking space.

Mr. Darna noted parking spots 9 through 11 and questioned whether there is a resident living there.

Mr. Walnum stated they are for the property owners.

ZBA – PH – 7/26/17 - 8

Mr. Darna questioned whether that is where they are going to park their cars.

Mr. Walnum agreed that they will be parked there.

Mr. Darna asserted that technically, another parking spot would be lost to the tenant.

Mr. Walnum disagreed, as that number was factored in when the Town and this Board came up with the number of parking spaces required for the entire building. He clarified that the brewery is not the only tenant in the building. He said there is a gym below, which was covered in the calculation as well as the landlord.

Mr. Stevenson stated that Mr. Davis is agreeing that all those factors were taken into consideration.

Mr. Davis explained that when it went through the Planning and Zoning Commission application, the applicant was provided with a zoning compliance table outlining all the uses on the site and the calculations for all uses and their required parking.

Mr. Walnum provided another point of clarification. The spot that is marked on the plan as space No. 6 was simply a suggested place. He stated they are open to suggestions on that from the Board as well. If it meant they had to park the truck closer to the grass and people wait in line on the grass, that would be fine, he said.

Mr. Peak stated the part of the applicant’s argument he was most interested in asking about was the hardship. The regulations in the Historic zone do not allow for a food truck. Food trucks are allowed in other places in town, he stated. Mr. Peak stated in his opinion, the brewery would be at a disadvantage in respect to other breweries in surrounding towns where it is commonplace to have food trucks on the premises. He questioned what other towns are allowing the food trucks.

Mr. Walnum stated they are allowed in Hartford at Hog River. They pull it right up to the side and patrons walk out and get it, he said.

Attorney Dunshee interjected there are many, such as Firefly Hollow in Bristol. It is common practice for breweries to have food trucks and a good number of the local wineries do as well, he said. Two Rows in the southern part of the state always has a food truck parked outside, Attorney Dunshee stated. Even here in town there are other breweries that are opening that are not in historic districts, he stated, and it puts the applicant at a competitive disadvantage.

Mr. Peak stated that the regulation was written in 2015. He questioned whether a classification for brew pubs is a recent development in the world of Planning and Zoning.

Ms. Bertotti stated she believed the regulations were adopted in January 2016.

Mr. Peak stated that in his opinion, this is a new market that is developing and is popular. The applicant is testifying that the way it works best is with a food truck out in the lot because the brewery’s business is brewing. It could be argued that it makes sense for people to be eating while they’re drinking, Mr. Peak stated. He requested confirmation that there are seats for 102 patrons.

ZBA – PH – 7/26/17 - 9 Mr. Walnum agreed that it there are 102 seats.

Mr. Peak suggested people could go to the food truck, get their food and 102 people could bring 102 meals inside.

Mr. Walnum stated in theory that could happen.

Mr. Peak stated he pictures people coming to the brewpub as a destination primarily because of the beer.

Mr. Walnum agreed that beer is the primary business. The food truck is a nice bonus, he said, and it is expected; it is very commonplace in the industry.

Mr. Peak stated he appreciated that the applicant was flexible about the location of the food truck. There is a garage in the middle of 6, 5, 4 and 3 which appears to be an historic building, he said, and questioned if the plans are to work around an historic garage with broken windows.

Attorney Dunshee explained that the plan is to rehab the garage along with the rest of the property.

Mr. Peak also questioned a concrete foundation that was part of the garage or some other building that used to be there.

Attorney Dunshee stated the applicant is completely open to suggestions or input on where the truck is to be located.

Mr. Peak stated that a number of years ago, the Water and Sewer director testified there is a public sanitation benefit to breweries in the community, though he could not recall the reasons.

Attorney Dunshee explained that the wastewater is neutralized before it goes in the drain so it is clean water going back into the system.

Mr. Peak said perhaps the gist is that breweries are potentially big customers.

Mr. Haley thanked the applicant for doing business in Manchester. He questioned who will manage the food truck. He said he was concerned about who would determine where the truck would be parked, the applicant or the food truck owner. Mr. Haley expressed concern that once the Board grants a variance to allow a food truck, 10 food trucks could come and fight over the spot.

Attorney Dunshee replied that the applicant would contract a food truck and ask them to be there on a certain day. It would not be a free-for-all race to see who gets the spot or a situation where more trucks show up, he explained, and it would be a planned thing in concert with that food truck operator.

Mr. Haley reiterated that, once the variance is granted, now a food truck would be allowed and he did not know the legalities of regulating the responsibility of what truck goes there.

Attorney Dunshee reiterated that the business will take on the responsibility to reach out to a food truck and invite them to be there on any given particular day that the variance is allowed.

ZBA – PH – 7/26/17 - 10 So it would not be a free-for-all to come on the property, whoever gets there first, he said, and this is how other breweries handle it.

Mr. Haley confirmed his concern with the variance and if a food truck is allowed, the Town would have no control over it.

Mr. Stevenson stated that the application is for a single food truck.

Mr. Haley asked how that is to be decided.

Mr. Stevenson replied that the brewery will decide on the vendor. One day it could be Lucky Taco, the next day it could be another one, he asserted. He assumed one single food truck is enforceable.

Ms. Bertotti stated that it is. The number of food trucks is definitely enforceable, she said. Ultimately, Ms. Bertotti said, variances are always granted to the land which then defaults to the property owner who leases his property to Labyrinth, the applicant. Therefore, they would manage the food trucks. If someone was in violation, a letter would go out to the property owner who would then deal with Labyrinth and then the brewery would deal with their subcontractors. That is how enforcement would work, she stated.

Mr. Haley asserted that this would be on Saturday and Sunday when the Zoning Enforcement Officer is not working.

Ms. Bertotti agreed.

Mr. Haley noted there are two addresses.

Attorney Dunshee confirmed the addresses are 126 and 148 Forest Street.

Mr. Haley asked how far back the property goes and whether it stops at the gates to the mansion.

Attorney Dunshee explained the property actually backs up to the mansion’s rear entrance.

Mr. Haley commented that is not part of the address.

Mr. Gionet commented that the applicant mentioned other towns that have food trucks onsite and questioned if they are in historical places like Manchester.

Mr. Walnum stated he was not sure. He thought that Two Roads in Branford may be.

Mr. Gionet stated that is not an historical place. He questioned whether the parking is going to go all the way up to the gate going into that mansion.

Mr. Walnum referred to the drawing, pointing to Forest Street, the brewery’s main entrance and the main drive. On the drawing, he pointed to a drive that leads to a small gate that leads off from the mansion behind the property, and the brewery’s parking is to either side of that main drive.

ZBA – PH – 7/26/17 - 11 Application #2017-045 – Request a variance of Art. IV, Sec. 9.02.01 to allow a gravel parking lot (bituminous or masonry concrete required) for two years at 126 and 148 Forest Street, Historic zone.

Attorney Dunshee explained the request is to use gravel short-term instead of fully paving the parking lot. The condition of the current pavement is bad, he stated, and Labyrinth has been required to put down new pavement. That requirement did not exist for the gym that is on the property, he pointed out. Attorney Dunshee explained that the applicant is requesting to use gravel instead, which has little to no significant difference, for a short period of time as stated on the comments. He stated the applicant responded that in all the handicapped areas, ramps would still be paved. They are requesting gravel for the parking lot for a period of time.

Mr. Stevenson questioned Mr. Davis as to why this was not enforced for the gym.

Mr. Davis did not know.

Mr. Stevenson asked if Mr. Davis would enforce that for the gym.

Mr. Davis stated there has been a gym there as a permitted use.

Mr. Stevenson agreed, but the parking lot has not been paved.

Mr. Davis explained that it is a zone that has a historic permitted use on the lower level. Therefore, he said, if it is a continued permitted use, it does not require a building permit. He said it only gets a zoning permit.

Mr. Stevenson asked why the brewery needs one if the gym did not need one.

Mr. Davis said this is a special exception use in addition to an expansion of the parking lot.

Mr. Stevenson concurred.

Mr. Peak noted the application stated that there were other parking lots in the area that were either gravel or did not need to put in a new parking lot. He wondered if other businesses, even if they had old asphalt that was in poor condition, could just move into a place and keep the old parking lot.

Ms. Bertotti explained it is not about whether the business is new or not new. It is whether the business is a permitted use as of right or if it is a special permit. She stated that, when something is a special permit, it generally means that it has some sort of impact that is to be reviewed and examined by the Planning Commission. It draws parking, traffic, or something more to the site than what is generally permitted under just regular regulations, Ms. Bertotti stated. That is why, she said, normally when something comes for a special permit, especially when there is a proposal for development of the site (they added parking and improvements to the site) the repavement and repair of the substructures for storm water management is required.

Mr. Peak questioned staff if there is a special set of rules for historic preservation. Reading in the zoning regulations that the intent there was to be able to preserve the historic area, he asked if there are special rules or special attention given to this part of town because of a desire to maintain the Cheney history and a big part of Manchester history.

ZBA – PH – 7/26/17 - 12

Ms. Bertotti explained that there are two different sections of the Historic zone. Cheney Mills, an industrial section of the Historic zone, is historically different and is to be treated differently than the Cheney Mansions, which are large mansion homes, she said.

Mr. Peak concluded this location is in the second category.

Ms. Bertotti stated Labyrinth brewery is in the Cheney Mills.

Mr. Peak asked questions related to the preservation of the Cheney heritage and the spirit of the Historic zone. In the application, he noted, it was stated that some of the work already done inside the building addressed some historic preservation, work that would not necessarily be required in another brewpub in a non-historic area. Mr. Peak questioned what has been the additional work and costs that the applicant has encountered to get the business to the point that it is at the moment in the theme of historic preservation.

Mr. Walnum described that there are a number of things the applicant is doing inside and outside. First and foremost, they are doing all the other repairs to make the site attractive again, he said. He explained that they are re-landscaping and putting in drainage systems to handle the infiltration of the water to make sure there is no excess runoff. They are taking down and restoring the original façade with Cheney-appropriate entrances and windows, Mr. Walnum stated. He specified the front of the building, on the second floor where the brewpub is located, where there are two double doors that were used for hauling up silk and loading it into the second floor, which were in extreme disrepair. The applicant plans to bring those inside, mount them to the wall, preserve them, and make sure they are kept in the best condition possible, he explained, and they will replace with them with a Cheney-appropriate window. Mr. Walnum specified those upgrades total about $200,000. On the interior, he detailed, the original floors are maple with a 4” cedar floor below them and they are restoring those on the customer facing area and on the production side, where there is the potential for water damage if a keg is dropped or it dents the floor. They have gone to painstaking measures to build the floor up in such a way that it can be torn up afterwards without damaging the floors, he explained, which cost about $30,000.

Mr. Peak inquired about the trees on the property map.

Mr. Walnum explained that, in order to make the parking available and have room for access for cars to back out into two-way traffic, they were required to take down three oak trees, again at great expense. They sent them off to a mill and are reclaiming all of that lumber for the inside of the brewery. The bar tops, the table tops, and a lot of décor will be made with the wood that was taken down. Otherwise, new bushes, shrubs and trees will be planted to bring the landscape up to something desirable, he noted.

Mr. Peak stated he hopes the applicant will communicate to the customers the preservation work done on the property.

Mr. Walnum said they absolutely will and noted it would have been a lot cheaper to buy a bar top.

Mr. Peak asked about the driveway to the Cheney Mansion area.

ZBA – PH – 7/26/17 - 13 Mr. Walnum pointed to the site plan and described their back driveway.

Mr. Peak attested that the business is an entryway to some of the old historic parts of the neighborhood.

Mr. Walnum asserted that a property in the area is being turned into a bed and breakfast.

Mr. Peak observed that he has totaled $230,000 at least of special expenses as part of the relationship to the historic zone but also as part of the spirit of restoring the building and complying with the special regulations of the historic zone.

Mr. Walnum agreed. When the project was conceived, they were of the opinion that they would not be in a steel box somewhere. He noted they wanted to be in Manchester first and foremost because they were all born and raised here and have long-term ties, and they are all property owners in town. It was their goal to have something that had character and the Cheney area made sense, he said, and when they found this building, it was perfect. Mr. Walnum remarked that on the inside, they came across some old shipping crates from Mary Cheney, and they are going to try to use those somewhere because they have her name printed on them with her old address.

Mr. Peak asked if the brewpub was going to be called The Labyrinth Brew Pub.

Mr. Walnum replied it will be called The Labyrinth Brewing Company.

Mr. Peak mentioned that, in terms of the parking lot, it appears they want to pave the handicap spots to be accessible for handicap purposes. He questioned whether walkways will be installed as well.

Mr. Walnum remarked that they have to pave back where the fire escape is. The entrance skirt is currently 23’ and by code it must be 24’, he explained, and they must tear that out and put in a new entrance skirt, which means more concrete work. Mr. Walnum noted that a new granite curb will be installed. There is a second entrance which is confusing and will be closed off, he noted. Other than walkways, there will be an access ramp and walkway, he stated.

Mr. Peak remarked those are the areas they would like to do right away, and there are other areas the applicant would like to delay.

Mr. Walnum reiterated it is just the blacktop piece that they want to hold off on; everything else will be in place.

Mr. Peak noted the current site has a large concrete floor next to the historic garage. In between parking space No. 4 and parking space No. 5, there is an old historic garage. He remarked that parking spaces Nos. 1, 2, 3 and 4 are on what used to be a garage and it is the concrete foundation of a garage that is gone. He noted there is actually some parking in that location, and assumed that employees are probably parking there now.

Mr. Walnum explained that there are four spaces on the concrete. The applicant must either level it or clean out some drains, but it is in the plans as usable parking spaces, he said.

Mr. Peak remarked there is a paved driveway in the area, but the asphalt is in rough shape.

ZBA – PH – 7/26/17 - 14

Mr. Walnum agreed that it is in disrepair now.

Mr. Peak remarked that the applicant is planning to use gravel rather than leaving the current asphalt in place. He questioned whether the applicant believes the gravel will be an improvement.

Mr. Walnum confirmed that it would be an improvement. He noted that it is level and historically accurate, more so than blacktop.

Mr. Peak surmised that Mr. Walnum believes that gravel is more historically accurate.

Mr. Walnum explained that it would be short-term.

Mr. Peak recapped that there would be a gravel parking lot leading up to a dirt drive to the old mansions. He questioned why the applicant would not just pave it now. He wondered if it is just a matter of the cost in addition to the significant costs outlined.

Mr. Walnum explained that in weighing the two costs, they are choosing which is more important.

Mr. Peak restated that preserving the double door that the silk came in through or carving the old trees and making them into a bar top is more important than the 1970 regulation about bituminous pavement required on any special exception use.

Mr. Walnum agreed.

Mr. Peak stated, after looking at the site and the condition of the current asphalt, he thought it was strange to think that a gravel lot would actually look better. However, in his opinion and with the applicant’s explanation, he thought it did seem as though that might be the case. Mr. Peak observed that, in his opinion, when the regulations were created about new businesses going to a special exception requiring parking lots with bituminous asphalt, there was a blanket rule for all business zones, not just the Historic zone. He remarked that the requirement does not recognize the particular facts about this lot, where the gravel would actually be an improvement.

Mr. Gionet noted that parking space No. 20 appears to have a storage tank next to it. He questioned how big the tanks would be.

Mr. Walnum explained those tanks are enclosed by shrubs to hide them and were previously approved. He pointed to a glycol unit necessary for the cooling of any vessels that require temperature control.

Mr. Gionet asked if it will be covered from visibility from the public.

Mr. Walnum reiterated that the original plans were approved, and there are bushes in front of it.

Mr. Haley asked when the brewery plans to open.

Mr. Walnum stated they plan to open in October of this year and construction is well underway.

ZBA – PH – 7/26/17 - 15 Mr. Haley noted the applicant seemed uncertain about the timeframe for the gravel parking, noting that they were seeking approval for one to two years. He questioned if that timeframe can be confirmed.

Mr. Walnum remarked that it would be ideal if the approval could be for two years. However, it does not mean they would not pave sooner, he said; it is just a matter of prioritizing where to spend the money right now.

Mr. Haley questioned whether the request was for two years from now, or two years from when the brewpub opens.

Mr. Walnum reported two years from now. He stated if the brewpub does not open in October, it will be November.

Mr. Stevenson questioned Attorney Dunshee. Referring back to Ms. Bertotti’s memo of July 20, 2017, he asked if Attorney Dunshee could respond to the last paragraph relating to the pavement of the parking lot. Mr. Stevenson read, “As a general rule, variances go with the land and apply to the use of land and not the user of the land. The time limits cannot legally be imposed on variances except as elaborated in Fuller’s Connecticut Land Use Law and Practice’s Series which states, ‘An expiration date as a condition would only be justified in these rare cases where the hardship on the use of the property is clearly temporary only.’”

Attorney Dunshee explained that a case could be made that this is rare given the historic significance and the expenses undertaken in opening the brewery that would not be required in any other district. He noted that, as Mr. Walnum stated, he is balancing the hardship of prioritizing expenses. Attorney Dunshee stated that a case could be made that this is a rare use.

Mr. Stevenson said, according to the Board’s powers, variances are granted “owing to conditions especially affecting such parcels only, but not affecting general district in which they are situated. A literal enforcement of such laws, ordinances or regulations would result in exceptional difficulty or unusual hardship towards the parcel only so that substantial justice will be done and the public safety and welfare secured.” He stated that the ZBA is not allowed to take a monetary hardship as a hardship. He questioned whether there is another hardship, other than expense, for this application, regarding the parcel itself.

Attorney Dunshee reiterated that it is the preservation issue. The work done and the restrictions imposed on the parcel itself are the preservation, he stated, and that would be a special hardship.

Mr. Stevenson requested confirmation that the applicant is only preserving the parking lot for two years, after which it will be paved over. He said he did not agree the historical preservation of the parking lot was a hardship, as it would be paved in 18 months or two years.

Attorney Dunshee reported the hardship was all the preservation rules on the entire parcel and the buildings.

Ms. Bertotti interjected that, regarding food trucks, the Town adopted regulations for a brewery and also recently adopted a regulation regarding vending, which includes food vendors. When the food vending regulations were adopted, she stated, those regulations were placed in a section that guides general requirements for all business zones as well as the Central Business District zone and the Comprehensive Urban Development zone by the mall. At that time, Ms. Bertotti

ZBA – PH – 7/26/17 - 16 stated, there was a conversation with the Planning and Zoning Commission about whether or not it was appropriate to have food trucks in the Historic zone. The Commission did not feel at the time that the Historic zone was an appropriate location for food trucks, she reported, though she was not certain whether or not there was any discussion on the relationship between food trucks and breweries. Ms. Bertotti reported that the Commission felt the Historic zone was a very appropriate location for breweries. That being said, she noted, breweries and food trucks are complementary uses. In her observation, food trucks seem to be an accessory use to breweries in most places.

Ms. Bertotti reported that she perceived that, when the Planning and Zoning Commission excluded food trucks from the Historic zone, they considered food trucks in general. The Commission did not specifically consider the relationship between food trucks and breweries, she said. As previously stated, she reported, when the Commission approved the special exception for the brewpub, they looked at the total parking count for all the uses. She stated that whether the food truck only occupies one spot is uncertain because it will depend upon the operation. On paper, she noted, the applicant is short at least one space, and if the Board grants the use variance for a food truck, the other variance will be necessary, as otherwise they have no location for it.

In terms of the parking lot surface, Ms. Bertotti explained, the temporary variances are not something that is legally practiced in the State of Connecticut. Variances, as a general rule, run with the land and the hardship that the Board should find in order to grant that variance would need to be related to the temporary use that is associated with the temporary granting of a variance, said Ms. Bertotti. Therefore, if the Board proceeds with approving a variance that is time-restricted with regard to pavement of this parking lot, then she recommended the Board think about something that can be entered into the record that is also related to the hardships that are time-related. Also, she noted, if a food truck variance is granted, the applicant should state certain hours of operation. The hours that Ms. Bertotti cited in her memo are directly from the Town’s zoning regulations. Those hours differ from the hours that the applicant proposed, she reported, and they also differ from the hours that are stated in their narrative. If the Board plans on including some limitations on the hours of operation of food trucks, it should be verified with the applicant which hours specifically the food trucks will be onsite, or the hours in her memo should be utilized to match Town regulations, which actually exceed what the applicant is requesting.

Mr. Stevenson confirmed that the applicant’s attorney did say that they would abide by all four of those conditions in Ms. Bertotti’s memo.

Ms. Bertotti agreed and reported the applicant indicated that they would require a food truck from noon until 6:00 p.m. on Saturday and noon until 5:00 p.m. on Sunday.

Mr. Stevenson noted there is positive testimony from the applicant that they would abide by the four conditions in Ms. Bertotti’s memo, and these would supercede anything else in his opinion.

Ms. Bertotti confirmed that the hours permitted for food trucks in the regulations exceed what the applicant was seeking.

Mr. Stevenson confirmed that enforcement is easier if they abide by the regulations.

ZBA – PH – 7/26/17 - 17 Ms. Bertotti agreed and noted that, if the business changes, the approval for a food truck stays with that property.

Mr. Stevenson agreed, but reiterated they will always have to abide by the regulations.

Mr. Haley noted that Ms. Bertotti did not mention that the food truck has to be moved at night.

Ms. Bertotti reported that that condition is in her memo.

Mr. Stevenson reiterated that it is one of the four conditions that the applicant agreed to.

Ms. Bertotti concurred and stated it is under No. 4. The food truck shall be removed from the property when the vendor is not in operation and the food truck shall not be conducted before or after certain hours, she said.

Mr. Peak noted that the Chairman had said that the expiration date as a condition would only be justified in rare cases where the hardship of the use of the property is clearly temporary only. He stated there were some questions about practicality or whether this is something that warrants the temporary use. He further questioned Ms. Bertotti if she is reporting that there is a way to tie two of the variances together in terms of their temporary nature.

Ms. Bertotti explained that the pavement of the parking lot, the use of it, is not associated with the food truck. The pavement of the parking lot is for the parking lot that was approved for the brewery, she noted, and the food truck and the one parking space variance are related to the operation of the food truck. Therefore, these two things are separate, she stated.

Mr. Stevenson attested that in his opinion, Ms. Bertotti was trying to say that the Board, in order to legally grant a variance with a time limitation, needs to find a hardship related to something temporary in a nature of the business. The temporary request will not hold up in court, in his opinion. He reported that an attorney could take the Town to court stating they will not abide by that. The variance goes with the land in perpetuity and, according to case law, in Fuller’s Land Use Practice series, the judge will throw it out and agree that in the State of Connecticut, zoning boards of appeals are not allowed to put a time limitation on a variance unless it meets the criteria Ms. Bertotti stated in the last sentence of her memo. He read, “an expiration date as a condition would only be justified in these rare cases where the hardship on use of property is clearly temporary only.” In order to legally grant a variance with a time limitation, the Board would need to be creative, Mr. Stevenson attested.

Mr. Peak surmised there has to be some other significant property-specific temporary event related to this particular variance.

Mr. Stevenson agreed and stated that otherwise the variance cannot be granted.

Mr. Peak noted that the applicant would pay a business entity tax every two years and he wondered about other events in a business’s life that are temporary in nature.

Mr. Davis reported that the idea of the last sentence is more for a situation where, for example, an applicant wishes to open their business on December 1st but they cannot pave because the plants are closed until April. That would be a temporary issue preventing the applicant from being able to fulfill what they needed to do underneath their permit, he reported. Whether a

ZBA – PH – 7/26/17 - 18 business pays its taxes annually, biannually, or monthly, is not the issue, Mr. Davis said. He noted it is directly tied to the paving of the property. There are occasions when applicants receive temporary Certificates of Occupancy because their landscaping is not complete and it is December and trees cannot be planted, and they will get the work done in the spring, Mr. Davis reported.

Mr. Peak said that, although the applicant would like to be allowed gravel parking for two years, the Board could say it is reasonable for a business putting in a significant parking lot in this area to wait until next spring to pave.

Mr. Davis reported that he was giving an example. A typical zoning variance, for example, would be due to a ledge outcropping preventing the construction of a garage in the proper location, which would require a variance of the dimensional setback requirement, he explained. However, Mr. Davis said he did not see something like this for this property and he believed that was what the Chairman was referring to.

Mr. Stevenson asked if there was anyone from the public who wished to speak on this application.

Jeannette Moore, 198 Chestnut Street, at the corner of Chestnut and Forest Streets, explained that the applicant’s parking lot is right outside her kitchen window. In the past, there was a proposal to put a restaurant in that area. She stated she did not attend the meeting for the brewery, and questioned what people will be doing at nighttime coming out of the brewery. Ms. Moore stated that in her opinion, it will be chaos. She reported her fence is in close proximity, and people run the stop sign in that location.

David Moore, 198 Chestnut Street, stated his concern that there are apartments in that area. In his opinion, people from the apartments will also be utilizing the food truck. He reported that he picks up McDonald’s wrappers, Burger King refuse, and beer bottles, and he feels this will increase. Mr. Moore said he believed that there will be patrons eating the food while walking home, or they will throw their refuse out of the car window. He recounted that residents were opposed to the brewery and after that was granted, the applicant is just now adding a food truck.

Mr. Stevenson reported that the approval of the Planning and Zoning Commission was separate from this application.

Mr. Moore stated that there will be trash and more traffic. He reported that he has lived in that location for nearly two decades and has witnessed thousands of close calls. Mr. Moore reported that he opposes the food truck and felt as though it should have been presented earlier.

Mr. Stevenson noted there were no other members of the public to speak on this application.

Attorney Dunshee responded that, in his opinion, there will not be a significant amount of foot traffic to the food truck. There are many restaurants close by in the area, he noted. The food truck, Attorney Dunshee reported, is going to be located off the street and out of view, which is the reason they chose that parking space. In theory, he surmised, there could be a couple of people walking over from the apartments, but given the area, the other food options, and the fact that the food truck is far from the star attraction of the business, the applicant does not expect a significant increase in traffic from the food truck.

ZBA – PH – 7/26/17 - 19 Mr. Stevenson questioned if there was anything else to assist the Board to move to grant the deferral of the pavement, anything of a temporary nature.

Mr. Dunshee explained that it is now the end of July and Labyrinth is trying to open by October, certainly by winter. It would be difficult to get a full paving commitment contract in before the winter, he noted, and paving cannot be done in the winter, which is another reason to ask for a temporary variance.

ANTONIO PASCARELLA – Application #2017-052 – Appeal of the Zoning Enforcement Officer’s denial of a permit application for a sign at 841 Main Street (a.k.a. 857 Main Street), Central Business District zone.

Mr. Stevenson explained that the Board does not receive many similar appeals. The job of the Board, he read from the ZBA’s Powers and Duties, is “To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter.” He explained the Board will hear the presentation from the applicant followed by the Zoning Enforcement Officer, and then it is up to the Board to decide whether to sustain the Zoning Enforcement Officer’s order, override it, or disapprove the order and find in favor of the applicant.

Antonio Pascarella, 857 Main Street, Manchester, Connecticut, stated he is asking the Board to reconsider the original application with the original design for their sign. He projected a photo of the sign that is already on the store and explained it is not the complete design. Mr. Pascarella pointed to the complete logo. He reported that this is what they are marketing, what they are advertising and what is on their products. The initial application was denied based on the size of the sign, he noted, and explained that it was originally proposed to be 18’ x 3’. Upon the rejection, they immediately decreased the size to 10’ x 3’ to stay within the regulations, he reported, and shortly after, they were granted an approved permit which was believed to be for the sign. Mr. Pascarella then ordered the sign. Subsequently, he reported, they learned that it was not the permit for the sign and they were given some options. One of the options, he stated, was to take the image of the bra and put it on top of the sign, which cannot be done because there is not enough room. He said he did not understand detaching the image from the logo. Mr. Pascarella stated they agreed on the sign without the image in order to have it when they opened the store. They are asking the Board to reconsider that decision as this is their logo. He stated the image of the bra is not the logo; it is just one part of it, and they are using the whole design on their products. The applicant wants to bring their high-end quality product with this logo and this name to Manchester, he said. Upon the denial, Mr. Pascarella reported, he looked up the Main Street Architectural Design Guidelines, which state very simply that a sign has to have a clear and simple message, which the sign does have – “Fine Italian Women’s Apparel.” It must have the name of the business, which it does, he said, and if an image is to be used, it is to portray the main products, which it does. Mr. Pascarella noted that their main products are bras and he cannot understand why the sign permit would be denied when most signs on Main Street are lettering, and other signs that do have graphics do not portray the product or services the business is offering. In his opinion, they are following the guidelines for Main Street and are asking the Board to reconsider that decision.

Mr. Haley asked how the business is doing.

Mr. Pascarella stated it is very, very slow.

ZBA – PH – 7/26/17 - 20

Mr. Haley questioned whether Mr. Pascarella expected that, or is business slower than what was expected for this time.

Mr. Pascarella noted that he did not expect it. Prior to commencing work on the store, they asked surrounding businesses and were told it is very busy. There are many people walking Main Street, he reported. He spent three weeks working on the store, and perhaps saw, on weekdays, about 30 people walking. Initially, the store was supposed to stay open on weekends and Sunday is deserted, he reported. He stated he was not expecting that, especially after hearing other businesses describing the traffic on Main Street as “crazy.”

Mr. Haley questioned whether he is contending that the lack of the logo is causing him to lose business.

Mr. Pascarella replied that he is not. He stated that he is introducing a brand and he would like to display the brand.

Mr. Gionet surmised that Mr. Pascarella wants to utilize the logo that is on his letterhead. Currently, the windows are basically the advertisement.

Mr. Haley noted that as people walk by, they do not look up at signs; they look at what is in the windows to see what is there. He questioned why that logo is so important.

Mr. Pascarella stated that it is important because it is the brand name. He noted that if Macy’s were to open on Main Street, they would not only have lettering, as they have a logo, a brand. Every customer of his store leaves with a bag with the logo on it, the whole logo, not a portion of it. He explained that he wants his brand to be seen when people drive by and noted there is a lot of drive-by traffic.

Mr. Gionet agreed that Main Street is quite busy with traffic. When people are walking, he noted, they are window shopping. They see what you have and either want to go in or not, he assumed.

Mr. Stevenson noted that this is the applicant’s brand. It is on his bag, business cards and website.

Mr. Pascarella stated that the graphic is everywhere. It was posted on Facebook for Downtown Manchester, he reported, and he is advertising at the Country Club. Mr. Pascarella noted they have provided images, logos and whatever they need. In addition, this was the logo that was printed on the concert flyers. In summary, every time they use this logo, they use the whole logo, not just one element.

Mr. Stevenson concluded that everywhere they are advertising, that graphic is included.

Mr. Stevenson noted that Mr. Davis will speak to how the decision was made as it was not his personal decision.

Mr. Davis reported that two applications were made for this business at this address on May 23, 2017. One application was a zoning only permit for taking over the space and opening that specific business with the size of the business, floor plan, and the intended use of the business as

ZBA – PH – 7/26/17 - 21 retail outlined. That application was signed off on May 31st by Mr. Davis and the building official, he said. At the same time, an application was made for the proposed sign, he stated. A couple of issues were reported, as the applicant stated, about the size of the sign being a little larger than what was permitted, Mr. Davis explained. The applicant reduced the size from 48 sq. ft. down to the maximum permitted 32 sq. ft. Once that was done and a new drawing was submitted, he said, that was sent to Gary Anderson, Director of Planning and Economic Development, and the Chairman of the Planning and Zoning Commission, Eric Prause, for their review, as is required by the Manchester Zoning Regulations. Upon their review, the application for the sign was denied.

Mr. Davis stated an e-mail was sent back to the applicant stating the reason for the denial. The statement read, “After reviewing this application, the Chairman and I (Gary Anderson, Director of Planning) do not feel the proposal is in keeping with the Main Street Architectural Design Guidelines as required by the Central Business District Zone and thus it should not be approved at this time. While we find the lettering, font and color for the sign to be consistent with the guidelines, the image could be easily misinterpreted. It does not clearly convey the nature of the business.” The applicant then revised the sign permit application to be just the “Eleganza Moda” with the “Fine Italian Women’s Apparel” rectangle as a portion of what he had before to be 30 sq. ft, he reported. That was approved and then the sign was installed, said Mr. Davis, though it was slightly different than the current sign. He explained it appears as though the applicant cut off the left side of that. Mr. Davis speculated that the applicant would modify what is on the wall itself now should the appeal be denied so that it would conform with what was approved later on. The applicant is correct, he noted, that in accordance with the Manchester Main Street Architectural Design Guidelines, “The information on the sign should be simple and clear. The type and/or graphic symbol used on the sign should easily convey the business’s name and its main product or service only.” Based on these design guidelines, the Chairman of the Planning and Zoning Commission and the Director of Planning and Economic Development chose to deny the application for the sign, Mr. Davis explained.

Mr. Peak requested clarification on the memo referring to the misinterpretation of the image.

Mr. Davis restated that Gary Anderson, the Director of Planning and Economic Development, sent a memo to Mr. Davis on June 6th in reference to the permit application, which stated, “While we find the lettering, font and color of the sign to be consistent with the guidelines, the image could be easily misinterpreted and does not clearly convey the nature of the business.”

Mr. Peak asked if the concern that the image could be easily misinterpreted comes from the Main Street Architectural Guidelines.

Mr. Davis said that, in reviewing the Main Street Architectural Design Guidelines, the Director of Planning and the Chairman of the Planning and Zoning Commission had that response.

Mr. Stevenson added the exact excerpt, “The information on the sign should be simple and clear, the type and/or graphic symbol used on the sign should easily convey the business’s name, its main product or service only.” That was the specific language that they were referring to, he noted.

Mr. Davis agreed.

ZBA – PH – 7/26/17 - 22 Mr. Peak questioned whether the Design Guidelines use the language about the image being easily misinterpreted, or if that was just the finding for this particular sign.

Mr. Davis replied that was the finding from the Chairman of the Planning and Zoning Commission and the Director of Planning and Economic Development for this particular application.

Ms. Bertotti explained that, procedurally, the zoning regulations require that signs and exterior changes on buildings on Main Street be reviewed and approved by the Director of the Planning Department and the Chairman of the Planning and Zoning Commission. Those reviews must be made in accordance with the previously referenced Main Street Architectural Design Guidelines, she stated. Staff contacted the Town Attorney in regards to the authority of their review on this and were told that the Chairman of the PZC and the Director of Planning have broad authority in their review and their evaluation of language within the design guidelines. She stated that, when looking at the Main Street Architectural Design Guidelines, they have the authority to review for example, the size of font, or whether the color detracts from the sign. After they make a decision, Ms. Bertotti noted, the Zoning Enforcement Officer’s decision is based it. The Zoning Board of Appeals’ job tonight is to review the Zoning Enforcement Officer’s decision as to whether or not his decision was done in accordance with the zoning regulations, she stated.

Mr. Stevenson asked if Mr. Pascarella had any additional information to add or any rebuttal to what was said by Mr. Davis.

Mr. Pascarella replied that he would like to add that on Main Street today, there are many businesses. Some businesses are moving out, he noted, and there is an entire block with different businesses – restaurants, attorneys and other businesses – that have the same kind of design, he noted. He explained the signs are on the wall, rectangular, and are all the same. He stated he understands the goal to keep the architecture of Main Street on historical levels, but in his opinion, the Town is not attracting people. Main Street has no character and no colors, he observed. Mr. Pascarella stated he is not sure when people stopped walking on Main Street, perhaps when the mall was established, but in his opinion, the Town needs to bring people back. He surmised that, based on the guidelines written in 1991and the words used, there should not be a reason to reject this kind of sign. Additionally, looking at the economy, he speculated, Main Street is being killed. In his opinion, the business owners should be allowed to be creative in order to attract people. He stated they have people from Manchester coming in the store saying they do not shop in Manchester, and his business came to Manchester with a beautiful product.

Mr. Stevenson noted there were no members of the public to speak.

The public hearing portion of the meeting was closed at 7:52 p.m.

I certify these minutes were adopted on the following date:

______Date James Stevenson, Chair

NOTICE: A DIGITAL RECORDING OF THIS PUBLIC HEARING CAN BE HEARD IN THE PLANNING DEPARTMENT.

ZBA – PH – 7/26/17 - 23 MINUTES OF BUSINESS MEETING DRAFT HELD BY THE ZONING BOARD OF APPEALS LINCOLN CENTER HEARING ROOM JULY 26, 2017

MEMBERS PRESENT: James R. Stevenson, Chair Albert Gionet, Vice Chair Robert Haley, Secretary Armando Darna

ALTERNATES PRESENT: Matthew Peak, Sitting

ABSENT: Edward Slegeski John Topping Sandra DeCampos

ALSO PRESENT: Renata Bertotti, Senior Planner James Davis, Zoning Enforcement Officer Nancy Martel, Senior Administrative Secretary

The Chair opened the Business Meeting at 8:49 p.m.

CONSIDERATION OF PUBLIC HEARINGS:

WATERSTONE RETAIL DEVELOPMENT, INC. – Application #2017-043 – Request removal of a previous condition of approval of a variance #2016-070 that no wall sign be located on the building above 40 feet at 434 Tolland Turnpike (formerly 444 Tolland Turnpike), General Business zone.

Mr. Peak stated he would be inclined to support the request for the removal of the condition if the Board can apply a reasonably-enforced time limitation on the illumination. He stated, in his opinion, the point about light pollution is a legitimate public interest concern.

MOTION: Mr. Peak made a motion to approve the removal of the condition with the provision that the illumination should be between the hours of 7:00 a.m. and 6:00 p.m.

Mr. Stevenson inquired if the Board should make a modification of the condition or remove that condition and apply a new condition.

Ms. Bertotti stated that the removal of the previous condition of the approval of a variance is effectively a modification to a variance. So at this time, the Board is modifying that same variance again.

Mr. Stevenson commented that the applicant is requesting the removal of the condition. Ms. Bertotti interjected that they are requesting removal of the existing condition on the pre- existing variance.

Mr. Stevenson questioned whether the Board can add a new condition on an application that was already heard and approved.

Ms. Bertotti replied that yes, it is a modification and the application before the Board is a modification to that variance.

Mr. Stevenson reaffirmed that he wanted to legally understand this motion. He surmised it would be a modification of a condition.

MOTION: Mr. Peak moved to modify the variance to remove the language pertaining to the 40’ height on the sign and add language requiring that the illumination is limited to 7:00 a.m. to 6:00 p.m.

Mr. Davis asked if the Board would be approving what the applicant requested as the height of 53’9” or eliminating the 40’ restriction to remove the height issue.

Mr. Stevenson replied the applicant would be restricted to 53’9’ because that is the height of the building.

Mr. Davis noted that the building height is 55’ or 56’; it is more than 53’9”. The applicant was requesting to raise the sign to 53’9”.

Mr. Stevenson affirmed the Board would modify the 40’ to 53’9”.

Mr. Peak withdrew his previous amendment to the modification.

Mr. Darna noted that when the Board originally looked at this building, it did not have the building plans at the time when they came in for the permit. The Board did not know what the building was going to look like. He stated that when he went down, he realized the way they designed the interior of the building and the glasswork, the sign would be right in the middle of something. He stated he could understand why the applicant was raising it up to where the utilities are on the roof anyway and it would actually enhance the look of the building.

Mr. Haley stated he would not support the application. When the cancer center came before the Board, the Board limited the height because of the neighborhood outrage. The Board made a line in the sand, to keep the lighting at 40’ and for good reason. The Board cannot go around town measuring how low the building is or high it is up on a hill. The Board must set some kind of standard and he said he would to stick with that. Mr. Haley said he did not see a hardship if the sign was lower. This building is not a business attracting people and he said he would not support this application.

Mr. Stevenson stated he would support this application and he respected Mr. Haley’s comments. As testified, the elevation of the building is significantly lower than the interstate, which has

ZBA – BM – 7/26/17 – 2 been built up. Years ago, the interstate was lower, he reported. Mr. Stevenson reported that his issue was the illumination at night and the applicant has agreed that they would accept a condition that would limit the hours of the illumination. Thinking about the neighborhood across the interstate and other neighbors, Mr. Stevenson said, he believed 7:00 a.m. to 6:00 p.m. was a fair compromise.

Mr. Davis interjected a point of interest. In October 2016, the Planning and Zoning Commission changed the regulations in the General Business zone for the height of buildings from 40’ to a maximum height of 50’. Although this building would still require a variance because it is over 50’, he reported, the wall sign itself, other than having this condition imposed, would have been allowed at that point to be at 50’ for the maximum height, based on the regulation change after the variance in October 2016.

Mr. Haley replied that, after hearing that information, he would be able to support this application.

MOTION: Mr. Peak moved to approve a modification of a previous condition of approval of a variance #2016-070 to allow a wall sign no higher than 53’9”, with the sign to be illuminated from 7:00 a.m. to 6:00 p.m. only. Mr. Darna seconded the motion and Mr. Stevenson, Mr. Haley, Mr. Darna, and Mr. Peak voted in favor. Mr. Gionet voted against the motion. The motion passed 4 to 1.

Mr. Stevenson reported that the Board will consider application 2017-044 first, which corresponds to the food truck. There are two variances, for the food truck and the parking, and the Board will consider them together, he said.

MOTION: Mr. Peak moved to approve the food truck variance and the reduction of the parking spots.

Mr. Peak said, in his opinion, in reviewing these different regulations and balancing a number of competing interests in town, and the idea of bringing in a new, modern business the marketplace really has a demand for, to a special historic district zone creates a whole set of intersecting difficulties in terms of the regulations. He stated the hardship in applying a food truck application to an historic zone where there is a brewpub (which was only created in the zoning regulations in 2015) is such that Manchester is not competitive compared to other towns in terms

ZBA – BM – 7/26/17 – 3 of the regulation. In serving the public interest, Mr. Peak said he believed there is a real public interest in redeveloping underused properties in the Historic District. In his opinion, there is a public interest in bringing some life to that area. He also stated the regulations relating to food trucks need some updating, because this is the second time in a few months that food trucks have been an issue. This is a situation, Mr. Peak stated, where the intersection of multiple regulations at this particular site, if applied literally, would result in “difficulty or unusual hardship so that substantial justice (if the Board approved the application) will be done and the public safety and welfare secured” in terms of a number of other interests, developing businesses, historic preservation and having people have some food while they visit a brewpub. This is all in the public interest as well, Mr. Peak pointed out, and the idea of reducing the parking from 47 to 46 spaces does not seem like an unreasonable request given all the other investments that the applicant is making.

Mr. Stevenson reminded Mr. Peak that he may want to mention in the motion the conditions that the applicant has agreed to, on Page 2 of Ms. Bertotti’s memo.

Mr. Peak agreed and reported that, in the interest of having as much support for this as possible, he thought applying all four of those conditions was very reasonable. He was pleased to hear that the applicant had no problem with them. Mr. Peak stated all four of those conditions would be part of his motion to approve the variance related to the food truck and the variance related to the reduction in the number of parking spaces.

Mr. Haley said he would second, but would like to add a condition that an employee of either the brewery or the food truck walk the parking lot to ensure that all the trash was picked up from the night to satisfy the neighbors’ concerns.

Mr. Stevenson stated that seemed to be a reasonable condition and asked Mr. Davis if that would be enforceable.

Mr. Davis stated it may be difficult but the Town could definitely make the effort.

Mr. Stevenson inquired whether Mr. Haley wanted to add “will police the neighborhood and put trash containers out.”

Mr. Haley replied only that they police any trash coming out of the food truck.

Mr. Stevenson asked if Mr. Peak wished to amend his motion.

Mr. Peak stated he would absolutely amend his motion. In his opinion, the condition relating to trash from the food truck was to give some respect to the neighbors. He understood they have a number of concerns and unfortunately his motion is contrary to those. He added condition No. 5, stating that “litter from the food truck not removed shall be the responsibility of the owners of the brewery” so that if someone receives a littering ticket, it would prompt an incentive to pay attention to it.

ZBA – BM – 7/26/17 – 4 Mr. Haley interjected that the applicants seem reasonable. In his opinion, they will want to do it anyway.

Mr. Gionet reported that he could not support this application because it is an historical area. Once the Board allows this food truck in, it stays with the property. If the owners should sell it a couple of years down the road, the approval for the truck would stay there. Whatever else comes in there, Mr. Gionet stated, they could always have a food truck.

MOTION: Mr. Peak moved to approve both variances with the following conditions:

1. The food truck may not obstruct sidewalks, impede traffic, or create a traffic hazard. 2. All items offered for sale shall be maintained within the food truck, and signs must be on or inside the vehicle. 3. The food truck must be self-contained as far as water, sanitary or other facilities and no connections to such facilities shall otherwise be permitted. 4. The food truck shall be removed from the property when the vendor is not in operation. The operation of the food truck shall not be conducted before 7:00 a.m. or after 9:00 p.m. on any day. 5. Labyrinth Brewing Company, LLC shall be responsible for trash pickup for the food truck.

Mr. Haley seconded the motion.

Mr. Stevenson stated there is a motion with conditions and a second. He said he would support this. To reflect Mr. Peak’s comment about attracting new businesses and new types of businesses, and having visited breweries, Mr. Stevenson noted, this is definitely the model that is being used everywhere. He stated that 99% of the time people are going to get their food and go back into the brewery to drink and eat the food. They are not going to be hanging around the parking lot, Mr. Stevenson explained, and they would not grab food on the way out. In his opinion, patrons will get the food either by a food truck or a delivery car if they are ordering takeout and then eat it inside of the brewery. Hopefully, all the trash and everything can be contained inside the brewery, he said.

Mr. Stevenson, Mr. Haley, Mr. Darna, and Mr. Peak voted in favor. Mr. Gionet voted against the motion. The motion passed 4 to 1.

The hardship is that the Historic zone regulations create a hardship and regulations disallowing food trucks at breweries make breweries in Manchester less competitive compared to other towns.

LABYRINTH BREWING COMPANY, LLC – Application #2017-045 – Request a variance of Art. IV, Sec. 9.02.01 to allow a gravel parking lot (bituminous or masonry concrete required) for two years at 126 and 148 Forest Street, Historic zone.

Mr. Peak stated the Board could impose a time-oriented condition for approval that speaks to the spring paving schedule and the reasonable paving schedule over the winter. He said that is a

ZBA – BM – 7/26/17 – 5 more stringent condition but a realistic one than the applicant would have asked for, one to two years. In weighing the big picture, on the same vein as the original food truck and parking spot variance motion, and finding reasonable ways to allow the business to open, Mr. Peak identified a number of competing interests. He specified the business has spent more than $250,000 to renovate an historic property that otherwise may have lain vacant. In addition, there are a different set of regulations, drafted in 1970, which deal with parking and requiring applicants to put in a new parking lot for special exception uses. In his opinion, the two regulations compete with each other and create a situation of difficulty in making this practical for a business to complete their timeline. He stated that business owners have a number of things to complete during the process and these are just a couple of them. Being creative, Mr. Peak noted, and doing can be done for the sake of the greater good of the business opening and the historic preservation is in the best interest of the Town. On the other hand, the consequence of a gravel parking lot not being completed in a timely fashion did not seem to be much of a concern, Mr. Peak stated. It would be reasonable, in his opinion, for the Board to add the condition that the applicant complete the paving in the 2018 spring season. However, if it remained gravel and the next owner bought the place and said they had a permanent gravel lot because the variance went with the lot, Mr. Peak said he was not sure what the public harm in that variance would ultimately be. Mr. Peak added that, considering the state of the property today, gravel would be an improvement. He said he did not see the public harm in trying to be creative and helping the business open and he did see an enormous amount of public good in trying to facilitate that. For these reasons, Mr. Peak stated, he would ultimately make a motion to approve this application with conditions.

Mr. Stevenson acknowledged that he was struggling with this one because of the legal consequences, and a lack of hardship. The Board cannot consider a financial hardship as a hardship, he said. The legal consequences of putting an expiration date on a variance, Mr. Stevenson noted, are that it will not hold up in court if it is challenged. The Board could approve this variance with an expiration date on it, and in two years an attorney could challenge it in court stating the variance was granted and is applied to the land and there cannot be any legal time limits imposed, he theorized. In his opinion, they would have a good case, because the Board went ahead knowing that legally in the State of Connecticut, an expiration date cannot be put on a variance. Also, Mr. Stevenson reported, he was troubled by the financial hardship. If there was a different hardship, something else, non-financial, he would be open to considering that, but in questioning the applicant if there was any additional information on both of these points, nothing else was provided. Therefore, due to lack of hardship, Mr. Stevenson stated he cannot support this application.

MOTION: Mr. Haley moved to deny the variance. Mr. Gionet seconded the motion and Mr. Stevenson, Mr. Gionet, Mr. Haley and Mr. Darna voted in favor of denial. Mr. Peak voted against the motion. The motion to deny passed 4 to 1.

The reason for the denial was the lack of hardship and that expiration dates cannot legally be imposed upon variances except in rare cases where the hardship on use of the property is clearly temporary only.

ZBA – BM – 7/26/17 – 6 ANTONIO PASCARELLA – Application #2017-052 – Appeal of the Zoning Enforcement Officer’s denial of a permit application for a sign at 841 Main Street (a.k.a. 857 Main Street), Central Business District zone.

MOTION: Mr. Haley moved to sustain the Zoning Enforcement Officer’s order. Mr. Darna seconded the motion.

Mr. Peak stated that the image could be easily misinterpreted to mean a number of other businesses that are evocative in nature. His sense was that that was the concern. For legal reasons, he stated he would support the motion.

Mr. Stevenson reported that he could not support the motion. He explained that he took a ride down Main Street and noticed many signs with logos that have nothing to do with what he knows the business to be. There is a car dealership with a big bow-tie on their sign, which has nothing to do with cars, he stated, and there is a gym with a lion inside a heart, which has nothing to do with gyms. Mr. Stevenson also pointed out a couple of massage parlors that show various body parts and are evocative. He also noted a smiling rising sun face that has nothing to do with breakfast, in his opinion. He also described a sign with pandas on it for a Chinese restaurant, and stated he assumes they are not serving pandas there. The Harvest has a half moon with stars on it, and he said he knows what they do in there but is not sure what the moon and stars have to do with that. Something that is more in line with this business is dancing silhouettes at a dance studio close by, which Mr. Stevenson thought was similar to this. He observed that this is a lingerie shop with a silhouette of lingerie. He reported that those are some of his observations, and he does not intend to throw this back on the Zoning Enforcement Officer, but perhaps he could make a list of these signs to determine if they meet the standards. Therefore, he stated, perhaps the Town needs to take a closer look at some of these signs that are being allowed for businesses and logos that have nothing to do with what is going on inside the business. Mr. Stevenson asked the Zoning Enforcement Officer if he would take a look at that.

Mr. Haley agreed with Mr. Stevenson’s statements but in his opinion, the question was whether the Zoning Enforcement Officer acted properly when denying this request. He reported that the Zoning Enforcement Officer acted in his authority under advice given to him by the Commissions he is supposed to go to for advice. Therefore, Mr. Haley contended, the question is not whether Mr. Davis made the right decision about the sign or not; he acted in his authority by denying it.

Mr. Stevenson interjected that he has a different view, that Mr. Davis is representing the Planning Department, but perhaps this is a gray area.

Mr. Gionet stated that both Mr. Haley and Mr. Stevenson have good points. It is a lingerie store and they are all over town, he noted, including at the mall and on Oakland Street, with lingerie in the windows. He reported he understands what Mr. Haley is saying about the Zoning Enforcement Officer’s action, based on information from those in charge of reviewing signs proposed downtown. Mr. Gionet questioned whether there is any way of talking to those in charge.

ZBA – BM – 7/26/17 – 7 Mr. Stevenson stated he does not know if there is a way to appeal the Planning Director and PZC Chairman’s decision and that Mr. Davis is actually just the messenger. He stated he does not believe there is anywhere in the regulations that the decision can be appealed by going to the next level and surmised this is the only vehicle open to the applicant. Mr. Stevenson stated that, in theory, the applicant could go to court to challenge the decision, whatever that decision might be. Superior Court is probably the next step, if they wanted to go that route, he noted. Mr. Davis has said that he is just bringing the decision of others and he has to carry that forward because that is his authority. As stated previously, this is a situation that the Zoning Board of Appeals has not dealt with, Mr. Stevenson said.

Mr. Haley made another point that, when the sign permit was denied, the applicant accepted it because he submitted a new sign that was approved. His sign was approved after he went through the process, he reiterated. Had the applicant stated he would not install a sign because the decision is unfair, Mr. Haley might have been more sympathetic, he said. The applicant went through the system and the system, whether right or wrong, worked in its authority in a proper manner, according to Mr. Haley.

Mr. Stevenson attested that he understood Mr. Haley’s point, but the applicant wanted to open his business and had an opening date scheduled. He wanted to open his business, start making money, and start opening the door for shoppers regardless of what the sign was. Mr. Pascarella would then pursue his appeal to the ZBA, Mr. Stevenson said, and it takes time as the ZBA meets once a month and there is an application process that has to be submitted and approved and then put on the agenda. The applicant could have waited for this meeting before he opened, but he was ready and wanted to start doing business, Mr. Stevenson noted, and he temporarily, at least until this appeal went through, covered up the image on the sign. He also noted that the applicant did a nice job covering it up, as it does not even look like it was there. Mr. Stevenson said he was sure that, if the applicant did get the approval from the ZBA, he would just uncover it.

Mr. Gionet questioned whether, if the Board denies this request, the applicant could appeal it with the people in charge of downtown.

Mr. Stevenson reiterated that the people downtown did not make the decision. It was the Director of Planning and the Chairman of the Planning and Zoning Commission, he noted. In the regulations, they have the approval authority, he said.

Mr. Gionet asked if the applicant can go to whoever is in charge.

Mr. Stevenson replied that he can go to Superior Court.

Ms. Bertotti interjected he could request a text amendment to the zoning regulations.

Mr. Gionet, Mr. Haley, Mr. Darna, and Mr. Peak voted in favor of the motion to sustain the Zoning Enforcement Officer’s order. Mr. Stevenson voted against the motion. The motion passed 4 to 1.

ZBA – BM – 7/26/17 – 8 The reason for the denial of the appeal is that the Zoning Enforcement Officer acted within his authority.

APPROVAL OF MAY 31, 2017 MINUTES: PUBLIC HEARING AND BUSINESS MEETING

MOTION: Mr. Darna moved to approve the minutes as written. Mr. Gionet seconded the motion and all members voted in favor.

NEW APPLICATIONS

Ms. Bertotti stated there are no new applications, though there are several coming in, and reported that September will be a longer meeting.

MOTION: Mr. Darna moved to adjourn. Mr. Peak seconded the motion.

The meeting was adjourned at 9:20 p.m.

I certify these minutes were adopted on the following date:

______Date James Stevenson, Chair

NOTICE: A DIGITAL RECORDING OF THIS BUSINESS MEETING CAN BE HEARD IN THE PLANNING DEPARTMENT.

ZBA – BM – 7/26/17 – 9