Aspen & Mill Street Subdivision


Section 16.05 Block 1 Lot 11
Location: Mill Street and Aspen Road, Shrub Oak
Contact: Site Design Consultants
Description: Proposed 4-lot subdivision on 5.616 acres in the R1-40 zone. There are two existing residences, including a multi-family residence on the site.

September 22, 2008, work session
The applicant proposes to subdivide the parcel so that the two existing structures would be on one lot and three new single family homes could be constructed, each on separate lots. The site is in a FEMA designated flood plain (or flood way, the planning board wasn't sure of the exact or correct terminology).

The question was raised as to how many units were allowed on the site and how to count the existing multi family structure that has 9 units, 8 of which are one bedroom units. Citing their small size, Al Capellini, the applicant's attorney, said that typically one unit consisted of 3 bedrooms so that the existing multi family house should really be considered the equivalent of two houses.

The board's attorney Karen Wagner advised that a ruling from the Zoning Board of Appeals, possibly memorializing the history of the site might be a good idea. Alternately, the intensity of use in the new plan could be considered a change of use for the one acre zoned parcel. Mr. Capellini said that he had come to the Planning Board first to get a sense of the board's reaction to the plan.

There was a discussion with Joe Rina of Site Design Consultants regarding FEMA requirements for building in a flood plain, the need to elevate the building and requirements if house was to include a basement.

Mr. Ryan asked if the applicant would consider subdividing for 2 new lots instead of 3 as 2 of the proposed new lots were out of the flood plain and didn't raised wetlands and stream protection issues. Mr. Capellini said they would look into this option.

The applicant was also given memos from the building inspector and town engineer to review.

November 24, 2008, work session
Returning to the question of the site's pre-existing multi family use, Mr. Capellini distinguished between area and use variances and said that based on a 1960s letter from the then town attorney, he considered the multi family use on the site to be a legal non conforming use as the use existed prior to the adoption of the town's zoning code. He said, however, that the applicant will go before the Zoning Board of Appeals for an official determination. If the ZBA agrees on the use variance issue, then the applicant will apply for an area variance to subdivide the parcel into three separate lots; under the proposed new zoning for the area, the site would be “just shy” of the required acreage.

Mr. Klaus called Mr. Capellini's interpretation of the variance issue a “nice argument” but said that he didn't want to proceed with the application until the ZBA had ruled on the multiple dwelling issue.

March 23, 2009, work session
This project has been reduced from a 4 lot to a 3 lot subdivision, one lot which will contain the existing structures and two additional lots with one single family house proposed on each.  The ZBA still has not issued its opinion about area vs use variances for the subdivision.  Mr. Capellini maintained that the subdivision requires an area variance which would not increase the degree of con-conformity of the pre-existing buildings because they are non-conforming due to their use, not their area.  The Planning Board declined to make any recommendation to the ZBA since the Planning Board had originally asked the ZBA for its opinion in the first place.  Mr. Flynn suggested converting the multi-family building to a boarding house which would be a conforming use.  Mr. Capellini explained that a boarding house has only one kitchen while this building has entirely separate, independent units and that the owner is not interested in changing that, and it wouldn't affect the area vs use issue anyway.  So the Planning Board is still waiting to hear what the ZBA has to say about the necessary variances.
 

July 13, 2009, work session
Mr. Capellini advised the board that the zoning board had decided that the existing structures were not “non conforming uses.” The ZBA further recommended that the area that included the existing multi family structure and the single family home be subdivided into two separate lots in order not to increase any non conformity.

The board then proceeded to review a subdivision plan that would include two additional lots that would conform to the proposed one acre zoning for the site.

Most of the discussion centered on the FEMA designated floodway and floodplain areas on the map. While the site plan called for the new lots to come off an existing common driveway, Mr. Flynn suggested that as long as the property owner was going to make a profit, that the plan be done the 'right” way and that the driveway be relocated in order to take it out of the existing wetlands buffer. In response, Mr. Capellini noted that by constructing a new road there would be more disturbance to the site. Mr. Riina agreed that the proposed driveway for one lot could be flipped so that the same general area could be constructed along the same path planned for the utility lines.

As the site has serious environmental constraints, it was suggested that the applicant run the plan by both the Conservation Board and the town engineer and Mr. Klaus advised the applicant that he was proceeding at his own risk on a plan in doing any additional planning on the site.

November 23, 2009, work session

Mr. Riina described how the driveway to the new lots has been moved out of the wetland and the original driveway area will be returned to a natural state.  While excavating for the new driveway, a larger storm water basin will be installed.  Ms. Kutter, Conservation Board liaison, asked about the location of the conservation easement, but this has not yet been determined.  Mr. Flynn commented that the plan “looks viable”, except for the non-conforming use issue. 

 

There was considerable discussion about the intensity of use on the site, given the two existing residences.  Mr. Flynn disagrees with the ZBA’s ruling that the existing, non-conforming structures do not increase the intensity of use on the site and that only an “area” variance is required.  He thinks the intensity of use is increased, and his independent research on the case law suggests that increased intensity of use issues should be strictly interpreted.  He had asked Planning Board Attorney Wagner to research the case law, but Mr. Flynn hadn’t yet had a chance to read the results.  Mr. Flynn said a Public Information Hearing would not be scheduled until this issue was resolved to the Planning Board’s satisfaction.  The applicant’s attorney, Mr. Capellini, was clearly annoyed by this delay, pointing out that the ZBA had granted the necessary variance and reminding Mr. Flynn of his own experience on the ZBA.  He also said the other cases Mr. Flynn referenced were not on point.  Ms. Wagner said the intensity of use issue was within the purview of the Planning Board and the Board was within its rights to delay action until the issue was resolved.  The issues of non-conforming uses and intensity of use will be discussed at the December 14, 2009 meeting.

December 14, 2009,  work session

Mr. Riina described how one driveway had been moved and that the area between the brook and the driveway would have a conservation easement. It will be reforested and serve as a flood control area. This is the wetland mitigation area. Ms. Steinberg asked that the wetland permit application be amended in light of the driveway relocation.

There is a long-existing parking lot in the wetland buffer area. The Conservation Board did not address this in its comments.

Mr. Klaus questioned the sight distance on Mill St. since there would be more traffic due to the additional residence on the site. The applicant said it was quite sufficient.

There was no discussion of the variance granted by the ZBA. A Public Information Meeting was scheduled for January 11, 2010

January 11, 2010, regular session

Public Informational Hearing

 

Mr. Capellini summarized the site’s zoning issues.  The site is 5.6 ac. in an R1-20 zone.  It currently has a 9 family house and a one family house on it.  The proposal is to subdivide the property into four lots, with each of the existing structures having its own lot, and building two new single family houses on the remaining two lots.  Each of the proposed lots would be over 1 ac., well within the current zoning regulations and also within the 1 ac. zoning proposed in the Comprehensive Plan.  The existing structures are non-conforming for two reasons:  (1) a multi-family dwelling in a R1 zone and (2) two dwellings on one lot.  The ZBA ruled that the non-conformity was in the use of the multi-family building and that the proposed subdivision would not increase the extent of non-conforming use.

 

Mr. Riina described the physical layout of the site.  One new dwelling will have its driveway open onto Aspen, while the other new house and the two existing buildings will share a common driveway.  The common driveway will be relocated 50 ft to the east, i.e. further from Shrub Oak Brook which runs across the southwest corner of the site.  The stream is lined with concrete on the west side, but the other side has natural vegetation which will be enhanced by plantings in the wetland buffer between the stream and the relocated common driveway.  The two small wetlands on the site will not be disturbed, but a wetland permit will be necessary for the planting proposed in the wetland buffer.  The entire site has Town water and sewer service.  The lots are partly in a Federal Flood Plain, but the residences are not.

 

Mr. Flynn questioned whether it is correct to include the portion of the lots within the flood plain in calculating lot size.  Mr. Riina and Mr. Capellini maintained their lot size calculations are correct, but would verify the issue of including flood plain acreage.

 

Mr. Flynn pointed out that Mr. Capellini had used an example of an R3 zone in his arguments before the ZBA.  Mr. Flynn maintained that if the proposed subdivision is parallel to a R3 situation, as Mr. Capellini argued, then R3 standards should be used in its approval process.  This would require 400 sq ft of open space per unit and a 1200 sq ft playground.  Mr. Capellini maintained this would be inappropriate because (1) the uses of the property are legal, if non-conforming, (2) the zoning is R1-20, not R3 and (3) he used the R3 zone merely as an example before the ZBA.  No other Planning Board member spoke on this issue.  No conclusion was reached on which standards the Planning Board would require.

 

There were no questions from the public, and the Public Information Hearing was closed.

 

April 26, 2010, work session

 

The Building Inspector had been asked to interpret the term “periodic flooding” and the implications for building under such conditions, but declined to comment on the basis that even if the portion of the lot in the flood zone is subtracted, there still is enough buildable area on the lot.  Mr. Riina described how the parking for the multifamily dwelling will be moved from several small areas adjacent to the stream and concentrated into one large lot near the building.  All the run-off from the paved surfaces will be captured and treated, but the total amount of impervious surface still needs to be quantified and the storm water management plan needs to be documented.  The plan is to reclaim the original parking area and make a park-like setting up to the brook.  There will be a conservation easement along the driveway and brook wall.  Mr. Tegeder questioned whether it is appropriate to consider planting in the wetland buffer as wetland mitigation.  The wetland mitigation plan still needs to be formalized.  A public hearing was set for May 10, 2010. 

 

 

 

 

 

 

 

 

 

 

 

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