file #435 apln #1459 674_684 albany zone change

8/11/2019 File #435 Apln #1459 674_684 Albany Zone Change

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Exhibits

The list of exhibits on file at the time this memorandum was drafted is included in the appendix.

Context

During the context of this proceeding it must be understood that these properties are presentlyland that has been, and continues to be, zoned for development. These properties are presentlyunder the zoning designation of Residential-2. These properties are not to be considered asexisting Open Space (as it pertains to Types of Open Space, see the sidebar discussion ofChapter 4, Page 28 of the 2014-2024 Canton Plan of Conservation and Development). The typeand intensity of development that is presently allowed to occur on these properties is governedby Section 3, Residential Districts, of the Town of Canton Zoning Regulations.

Background

In June, the New Hartford Planning and Zoning Commission approved a zone change of 18.47acres of land adjacent to these properties for industrial use. The applicant indicated his desire toseek such a change for the abutting land in Canton.

In July, the applicant presented initial concepts of his plan to the Canton Economic DevelopmentAgency, indicating the contemplation of an industrial park consisting of 5 lots in Canton. At thattime it was disclosed that there are not yet specific tenants involved with the potential park, andthat full details of potential lot layouts and designs are not yet known. It was also presented thatthe creation of the sought after industrial park would involve the regrading of portions of the site.The general location of intended conservation areas, buffers, and a conceptual layout of lots wasalso presented at that time.

Despite this background, the only item presently being sought, and under review by the

Commission, is a request for a Zone Map Amendment.

As mentioned by the applicant during that presentation, pre-application discussions with staffconsidered three possible courses of action for the applicant to pursue:

1.

Zone Map Amendment from R-2 to I;2.

Zone Map Amendment from R-2 to a modified IPD (Industrial Park District) (totailor existing IPD standards to apply more closely to these particular lots and theapplicants proposal);

3.

Zone Map Amendment from R-2 to a new district master planned and tailoredspecifically to accommodate the development of these particular lots/ area.(Design District)


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Public Hearing Notices and Statutory Time

Legal notices of public hearing were/ are to be published as follows:

Certification of the posting of a Public Hearing Sign (Section 9.9.F) was submitted onAugust 26th, 2014 (pending the conclusion of the notification period).

Certification of the required mailings (Section 9.9.G), has not yet been received(applicant has at least 15 days prior to the hearing).

Notifications to abutting municipalities (within 7 days of the receipt of theapplication) (Section 9.9.H and Connecticut General Statutes (CGS) 8-7d(f)) hasbeen confirmed on August 5th, 2014.

Notification to the Regional Planning Agencies (not later than 30 days before thehearing) (Section 9.9.I and CGS 8-3(b)) has been confirmed on August 6th, 2014.

The proposed amendment has been filed with the Town Clerk (CGS 8-3) (at least 10days before the hearing) has been confirmed on August 26, 2014.

Per CGS 8-7d(a) the hearing must be closed within 35 days (October 22nd) unless the applicantgrants and extension.

Applicable Criteria in Evaluating the Proposed Amendments

Consistency with the Town Plan of Conservation and Development

CGS Section 8-3a provides that:

In any municipality which has a combined planning and zoning commission operatingunder the general statutes or any special act, the commission shall state on the record itsfindings on consistency of a proposed zoning regulation or boundaries or changes thereofwith the plan of development of the municipality. (underlining added for emphasis,statement must be read aloud during the preceding)

The applicant has submitted a statement regarding the consistency of the 2014-2024 Canton Planof Conservation and Development (POCD) with this proposal and has included excerpts of thePOCD, Section 6 Economic Development and Section 12 Future Land Use Plan as part of theapplication.

There is no disagreement from staff with the excerpts of the POCD presented by the applicant

(with exception to Item F of the narrative previously noted).

The following analysis is provided for the Commissions consideration as they form their ownfindings.


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The POCD was written with an understanding and acceptance of the reality that mostundeveloped land in Canton is privately held land that is waiting to be developed. The processfurther realized that growth and change will be inevitable, but such growth and change must beguided and shaped to positively reflect the character of the community.

In analyzing the POCD it is important to consider the two prominent themes of the document

which are:o Preserving community character; ando Building and sustaining the economic vitality of Canton.

As indicated in the Preface, these themes may pull in different directions but are notincompatible, and if applied successfully, both themes will work together to enhance the overallquality of life in Canton. Therefore the theme of balance is paramount in considering anycompeting interests.

Staffs interpretation of the POCD Update Committees efforts in the architecture of thedocument is to reconcile the chapters, strategies, and implementation measures with thecommunity character principles of the Plan (seeking to achieve balance). This is done to ensuresuch character is not unnecessarily diluted by our own actions or those of others.

As foreshadowed in the preface of the POCD we now find ourselves less than 4 months after itsadoption faced with this very challenge of contemplating an opportunity to build our economicbase, while preserving community character.

POCD References

Specific references from the POCD that may be relative to this proposal, or may touch upon thisarea, can be found as follows:

Preface - as noted above

Chapter 2 Community Character

References to preserve, conserve, and enhance Character.

In looking at the character of the town, the POCD realizes that there is notone character specific and unique to Canton, but that the character is differentand changes throughout the community.

o This specific proposal is located within the West Gateway, see alsoDistricts, Chapter 11, Page 86 for identification of conservation,development, and infrastructure components identified in the WestGateway that contribute to its character;

References to identify and protect scenic resources, Page 14.o Residents concerned with this proposal have stated that this part of

town is a gateway into town and is very scenic; Character Resources Map, page 15, identifies Active Farmland on the

property.

o Note this map specifically identifies Scenic Views and ScenicRoads. Presently the views of these properties/ road segment are notshown. This does not necessarily mean all scenic resources worthpursuing should be documented here, however these were not


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specifically identified as scenic views or roads during the 3 yearprocess of writing the plan; and

References in Chapter 2, Implementation Plan:

o CC9 Preserve farmland soils and working farms;o CC15 Revise land use regulations to promote a variety of

architectural styles in commercial areas and multi-family buildings inkeeping with the character of surrounding areas;

o CC25 Encourage and effect the identification of scenic views, viewsheds, and features whenever practical;

o CC27 Protect identified public right-of-way views of scenic value;and

o CC29 Limit development-related clear-cuts and exposed home sites.

Chapter 3 Natural Resources

Natural Resources Map, page 22, identifies this area as one of highgroundwater availability as well as having areas of slope greater than25%;

List of Priority Natural Resources on Page 21.o Implementation measures NR2 and NR6 call to review and

protect and preserve priority natural resources: This property clearly contains farmland soils (Map Page

32), which are not preserved or protected under thecurrent or sought after zone;

Concerns have been raised regarding the FarmingtonRiver. The proposed zone change is outside of theboundaries of the Farmington River Protection OverlayDistrict previously established by the Commission toprotect the outstanding values of the River. (The closestportion of the property affected by this proposal is

approximately 420 feet from the boundary of the River): The applicant, through the submitted mapping,

has proposed a Conservation Easement Areabetween the proposed zone change and theRiver.

o The Map on Page 24 indicates the central and southwest portionof this site to be in a CT DEEP NDDB Area (ConnecticutDepartment of Energy and Environmental Protection NaturalDiversity Database Area). (NDDB areas are not hands offareas, but are areas that are reviewed for special consideration assite plan and construction details are considered.)

Chapter 4 Open Space The POCD calls for the creation of a Meaningful System of open space.

In short, this property has not been considered as part of open spaceplanning to date. Should properties be determined to be worthy ofacquisition and preservation as open space, the POCD calls for this tooccur through pro-active planning that leads to negotiation andacquisition with property owners, not through the review of, and reactionto, zoning district proposals.


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Implementation Measure OS7 prioritizes, as part of the development of acomprehensive Open Space Plan, the preservation of land along theFarmington River corridor. Although not part of such a Plan, theapplicant has proposed a Conservation Easement Area between the areaof the proposed zone change and the River.

Chapter 5 Agricultural Resources

Agricultural Resources Map, page 33. This area is identified as havingactive farmland and farmland soils:

o The lead strategy in this chapter suggests taking steps to protectactive farms and farmland (through negotiation and purchase).This site is presently zoned for development;

This section suggests the community inventory and recommend suchareas for preservation, which has not yet been done.

Chapter 6 - Economic Development

There are numerous sections of this chapter that align with this specific

proposal. Page 36 - Increase the business to residential tax base proportion:

o ED1 Pursue a long term goal to increase the tax baseproportion from 15% commercial/ 85% residential to 20%commercial/ 80% residential.

o ED2 - Specific reference to stimulating development in WestGateway, Chapter 11. (Note reference to proximity to NewHartford business district and sewers);

Page 39 These properties are clearly identified as a PotentialOpportunity Location:

o Side Bar on Page 38 Opportunity Location are:

Sites of significant economic potential;

Sites where there is an expectation of a meaningful/ taxpositive contribution; and

Sites where there is known development interest.

ED9 Anticipate and promote the development on the opportunity

locations identified in the POCD and in accordance with the

principles of this plan;

ED12 Expand opportunities for light industry;

ED13 Increase the available inventory of land zoned for light

industry;

Reference on Page 41 Ensure that future economic development

enhances the community(focus on appearance and design):

o It is not yet clear what the design, layout and appearance of thisarea would be if the Map Amendment was approved. Suchconcerns would be evaluated under separate developmentapplications unless master planned as part of a design district;

ED43 Leverage the economic value of the Farmington River;

ED62 Have zoning designations follow property lines as much aspossible:


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o The applicants map, submitted on August 26, 2014, shows clearconflicts with this measure. The Commission has gone throughgreat effort over the past several years to align zoningboundaries to lot lines. The applicant should give someconsideration on how to manage this (possibly through the

carving off of the proposed conservation area as its own lotunder the exclusion of CGS 8-18);

ED63 Establish clear standards for the mutual buffering of businessand residential properties to reduce negotiation of this from the process.

ED70 Allow the use of open space to provide transitions between uses;

Chapter 11 Districts

West Gateway, Page 86 87: Provides a description of location,conservation, development, and infrastructure related observationsregarding this general area of town. (Note: general boundaries of theWest Gateway extend from this property east through Harts Corner to

the general area of East Hill Road):o Two of the most visible farmland plots in the town are located

in this district. Bristols Farm is located adjacent to Route 44 onthe north side just wet of its intersection with Route 179; andanother smaller, but just as visible, farm parcel is locateddirectly south of Route 44 as it nears the New Hartford TownLine.;

o This corridor through the West Gateway District includesimportant opportunity and potential infill sites for Canton as it

looks to increase its economic base. Care must be taken,

however, if/ when any such development occurs to respect

the character of the surrounding district. (emphasis

added);o This area is also located close to New Hartfords sewer service

and business area (including the ski slope), which warrants theexploration of the additional land uses and density in this area,hence leading to their identification as opportunity locations.

Chapter 12 - Future Land Use Plan

Map, Page 101 identifies the previously mentioned opportunitylocation, natural resource areas, and active farmland in prior mapping.


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Summation and Analysis of POCD References

While the POCD discusses the importance of preserving scenic views, roads, natural resources(including farmland soils), and open spaces, it considers the preservation of such as part of wellthought out initiatives, pro-active planning, and through the development of communityinventories to be recommended for preservation, not through the actions of the Commission inreaction to a Map Amendment application. Approving or denying a Map Amendment

application does not in and of itself affect open space, or preserve natural resources or farmland,but maintains or changes the development potential of the site.

The POCD suggests that the pursuit of these properties in a manner that enhances and sustainsthe economic viability of the town would be preferable to its being lost to residential subdivision.It should therefore be clearly understood how such development affects the character of thesurrounding district, and would occur in a manner that benefits the community.

The proposed Map Amendment is clearly aligned with the majority of strategies andimplementation measures documented in Chapter 6 of the POCD, yet there is not muchinformation included in the submission that would allow the Commission to understand howsuch development potential would enhance or affect the community, how it intends to respect thecharacter of the surrounding district, and its consistency with the community character principlesof the POCD in general (incorporating the overriding premise of balance). Most MapAmendments tend to be a natural extension of an existing district is being considered so thedetails to address these concerns are typically known. This is not the case here, whereexploration for economic growth has just recently been suggested. This will rest on details of theapplicants preliminary development plan which is anticipated to be presented as part of thehearing.

In other venues the owner/ applicant has stated that the project will be small scale, attractive,and will represent the town well. To date the submitted materials include standard informationassociated with location of the proposed Map Amendment. Additional information has not yet

been submitted that would indicate how the intended Map Amendment would result in such aproduct for the town.

Similarly, the sought after Industrial District, contains no special criteria or standards that wouldnecessarily ensure an approval would lead to the suggested result. The sought after MapAmendment opens numerous variables and alternate futures should things not go forward aspresented by the owner/ applicant.

Although there is no reason to doubt the intentions of the owner/ applicant, the Commission isnot in the business of issuing licenses to individuals that can later be revoked (or regulate thetransfer of) but establishes rights to use property that runs with the land. The request before theCommission is to change the zoning designation of the property alone. The Commission has

consistently approached prior proceedings of this nature with the mindset that the approval, oncevalidated, is (for whatever reason) not able to be carried out by the party that received it, but bysubsequent heirs, successors, or assigns. These subsequent parties may have different intentionsor desires, or may simply wish to maximum the use of the property based on maximum potentialestablished by the Commission, regardless of the original intent.


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The Commission should therefore be cautious in the consideration of any motion to approve, orfinding of consistency with the POCD, unless it finds that the owner/ applicant has successfullydemonstrated how the Map Amendment will result in development that is attractive, small scale,represents the town well, and respects the character of the surrounding district. Further theapplicant should demonstrate as part of their presentation to the Commission the best possible

effort to balance the pursuit of this property for non-single family development/ economicgrowth and value, with the character interests of the community. This will likely occur throughthe presentation of additional details on how the design, layout and appearance of this area wouldbe changed if the Map Amendment and subsequent applications are approved. (If this is notpossible to occur through this proceeding, alternatively, the Commission and owner/ applicant,could cooperatively master plan the intended development of this area through the use of adesign district, with the intent of providing a predictable (yet flexible) future build-out of theproperties that is compatible with surrounding areas.)

A final determination of the consistency of this proposal with the POCD will be made by theCommission during the proceeding.

Connecticut General Statutes (CGS) 8-2

The Commission can consider all of the factors listed in CGS 8-2 when reviewing changes inzoning regulations (inclusive of map amendments). Approval of proposed amendments shouldbe found to be reasonably related to the police powers set forth under CGS 8-2. (Copied to theend of this memorandum for convenience.)

Comprehensive Plan

Amendments approved by the Commission should also be found to be consistent with thecomprehensive plan. The comprehensive plan is found in the scheme of the zoning regulations

and its zoning map. The purpose of reviewing the comprehensive plan is to ensure that theCommission does not act in a manner which is arbitrary or unreasonable, but promotesreasonable and logical development. In promoting reasonable and logical development thewishes of individual property owners is not strongly considered. The change must serve thepublic interest in the development of the community.

In looking at the existing comprehensive plan there are two potential perspectives for theCommission to consider.

Through one lens this portion of town is dominated by traditional single family residentialzoning. The parcels in this area of Town are all R-2 single family residentially zoned. As youmove farther away zones become R-3 and R-4, indicating a desire to transition to less intense

development patterns. Understanding that the abutting land in New Hartford is now Industrial,it was previously Residential, and in this context the Commission could determine the rezoningof these parcels (and perhaps even abutting parcels in New Hartford) to Industrial to beinconsistent with Cantons Comprehensive Plan.


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Figure 1- Established R-2 Single Family Areas

Alternatively, through a different lens, the parcels in question have been long held byConnecticut Sand and Gravel who have conducted gravel removal operations on their adjacentNew Hartford counterparts. A sand and gravel operation would generally be considered anindustrial operation. An adjacent lot includes a cell tower and a windmill that has been approvedby the Commission that conducts power generation and puts excess power back into the grid,which could also be considered industrial in nature. Across Route 44 to the north is the Townsonly motel, a business use. The adjacent land in New Hartford is now zoned Industrial and itsmost recent prior use of a gravel operation is industrial in nature. In this perspective theCommission could determine a map amendment to and Industrial District for this property to be anatural extension of, and therefore consistent with, the Comprehensive Plan.


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Figure 2 - Established Non-Residential/ Industrial Type Uses

The Commission should remain cognizant of the Towns fundamental and underlying planningprincipal of our ten year plan - balance.

Permitted Uses/ Special Permit Criteria

Different zoning districts allow different uses of land and buildings. Some uses are determinedto encourage the most appropriate use of land within certain districts and are therefore allowedby Site Plan approval or by Zoning Permit (permitted uses). Other uses are allowed only afterobtaining a Special Permit from the Commission. Special Permit uses are generally acceptablewithin the district, but are subject to standards set forth in the regulations and to conditionsnecessary to protect the public health, safety, convenience and property values (such standardsare known as the Special Permit Criteria, Section 9.2.E). This ensures such Special Permit usesare compatible with and appropriate for the specific sites and surrounding areas in which they areproposed. When an owner seeks to make use of their property with a permitted use, it is

presumed that such use already complies with the Special Permit Criteria as it has beenpreviously found to be appropriate in that district. A copy of the Special Permit Criteria isincluded in the Appendix.

Permitted uses included in the Industrial District (Section 4.2.B) include typical industrial usessuch as:


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Lumber Yards;

Printing and Publishing;

Research;

Manufacturing;

Warehousing;

Professional Office; and Utility Facilities.

Additional uses allowed in the Industrial District by Special Permit are listed under Section4.2.C:

All Business District Uses allowed under Section 4.1.B and 4.1.C;

Volume Reduction Plant and Recycling Facility;

Adult Establishments;

Automobile Repair;

New and Used Car Dealers;

Vehicle Renting and Leasing;

Parking Lots;

Outdoor Storage; and

Greenhouses.

In drafting the existing Industrial District, and reviewing the areas to which it has beendesignated, the Commission determined that the character of the district and its peculiarsuitability for these particular uses encourages the most appropriate use of land in those areas.

Therefore, prior to approving the Map Amendment, the Commission should find (and theapplicant should demonstrate as part of its presentation) that the uses allowed in the IndustrialDistrict encourages the most appropriate use of the land if carried out in the area in which it isproposed. This vetting is especially important for the permitted uses allowed as, once

established, they will not be able to be controlled, buffered, modified, or limited through SpecialPermit reviews or subsequent conditions.

The granting of a use on a property may be considered to have an effect on that property or areaas it legally establishes the right to conduct such use. However, such effect is typically based onhow it is to be incorporated into or carried out on the site. To evaluate this, typically requiresknowledge of how uses in such district operate on similar lots in the area (as would occur if anexisting district was being extended), or, through the review of a plan demonstrating how the usewill be incorporated and carried out on the site. At the time this memorandum was written thereis not yet information on file suggesting how the uses would be incorporated into or carried outon the site.

Regional and Inter-municipal Referrals

As a regulation amendment within 500 feet of a municipal boundary a referral to the regionalplanning agencies and abutting municipality is required. Regional notifications were sent onAugust 6, 2014. The Town has not yet received a response.

Inter-municipal notifications to New Hartford were sent on August 5, 3014. The Town has notyet received a response:


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Other Considerations:

CTDEEP NDDB and Farmington Valley Bio-Diversity StudyIn response to comments raised to staff from the public regarding the importance of thisparticular land as a natural and environmental resource, including wildlife, staff reviewed theConnecticut Department of Energy and Environmental Protections Natural Diversity Database

(CTDEEP NDDB) a state provided mapping system that indicates areas with the possiblepresence of endangered, threatened and special concern species and significant naturalcommunities. The CTDEEP NDDB areas are mapped on all but the northeast portion of this area.

Figure 3 - CTDEEP NDDB Areas

Should any type of development activity ensue in this area, a reporting form would be submittedto the CTDEEP and any recommendations provided to protect any species are reviewed by theCommission at that time. In most past instances NDDB review comments are typicallyincorporated as conditions as part of any approval.

Similarly the Farmington Valley Bio-Diversity Project, MCA Technical Paper Series No. 11 wasreviewed. The Bio-Diversity Project, while very comprehensive in identifying primary andsecondary conservation areas, is silent on this specific area of town. Also, no inland wetlandssoils or potential vernal pools are identified on currently available mapping.

Farmington River Wild and ScenicFor similar reasons mentioned above the limits of the Farmington River Wild and Scenicdesignation were reviewed. The Commission adopted specific regulations, the Farmington RiverProtection Overlay District (FRPO), to help protect the outstanding values of Farmington Riverin recognition of its designation as a Wild and Scenic River. The limits of this protection extend100 feet from the edge of the River. The proposed zone change is approximately 420 feet fromthe edge of the River (much farther from the self-imposed jurisdiction of the Commission underthe FRPO). Had a portion of this project be found to be within such boundary, the FRPOregulates physical changes such as lot alterations, regrading, filling and clearing of vegetation,which would be reviewed as part of a site plan application, but would not necessarily beconsidered as part of a Map Amendment application.

Subsequent Actions

If approved the overall proposal as previously presented would require several subsequent anddifferent types of applications, likely including the following:


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o Site Plan (Zoning)

o Special Permits (for any uses beyond those allowed under Site Plan approvals)(Zoning)

o Soil Erosion and Sediment Control Certification (Zoning)o Earthwork and Grading Permits (Zoning)

o Subdivision/ Resubdivision (Planning)o

Well and Septic (Farmington Valley Health District)o Office of State Traffic Administration (DOT, if thresholds are met)o Inland Wetlands and Watercourses Agency (dependent on jurisdiction)

Conclusion

This review attempts to strongly reinforce that what is being proposed and reviewed is a MapAmendment only. A legislative action that results in no conduct other than the changing of wordson a map, thereby changing standards and uses by which future applications will be gauged. Thespecific information submitted with the application is limited to reflect that.

At the same time, there is discussion on several sides of this proposal out in the community aboutthe details of the overall project.

Given the Commissions responsibility to the public interest, there being no immediate context toconsider similar to what is proposed, and there being no clear depiction submitted of what thecommunity is to receive, the applicant is encouraged to provide more substantive informationregarding the proposal for the review and consideration of the Commission.


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Legal Considerations for Commission Action

The following are legal requirements derived from a reading of CGS, Section 8-3; as summarizedby Zizka in Whats Legally Required 2004, 7thedition, DEP Bulletin # 39, and / orPlanningand Zoning in Connecticut, 4

thEdition, by Thomas P. Byrne, Esq. pp. 185-206:

Statutory Requirements

Amendments to the zoning regulations and map require the filing of the amendmentin the Office of the Town Clerk, and notice of the hearing in a newspaper of generalcirculation;

If property affected by the change is within 500 feet of a municipal boundary, noticeof a change in the Regulations or zoning boundary must be directed to the regionalplanning agency;

The Commission must state on the record its findings on consistency of a proposedzoning regulation or boundaries or changes thereof with the plan of development ofthe municipality.;

The Commission must approve a change in zoning regulations or boundaries by a

majority vote of the full Commission membership (i.e., 4 votes in Canton); If the Commission receives a protest petition signed by 20% of the owners of

property within the zone change, or from the owners of 20% of the area of propertywithin 500 feet of all portions of the property(ies) of the subject zone change, theCommission must approve the application by 2/3 vote of the full membership of theCommission (i.e., 5 votes in Canton);

Approved amendments must be filed with the Town Clerk, and notice in a newspaperof general circulation required (implied within 15 days).

Relevant Considerations Derived from CT Caselaw

The Commission might find the following summary to be instructive as it deliberates on this

request: A landowner has no vested right in the existing zoning classification of their

property. (Byrnes, p. 186)

Zoning needs to be sufficiently flexible to meet the demands of increased population.(Byrnes, p. 188)

Courts will interfere in a zone change decision only if there is a clear abuse ofdiscretion or an unreasonable deprivation of property rights, or if arbitrary, illegal,and unreasonable. The Commission has liberal discretion. The welfare of the public,rather than private gain is a paramount consideration. (Byrnes, p. 188)

The zone change must be for the good of the community as a whole, and not for thebenefit of a particular individual or group. (Byrnes, p. 189)

The determination as to what constitutes the public interest is within the sounddiscretion of the Commission. (Byrnes, p. 189)

Highest and best use, or higher monetary value, cannot be used as a basis forapproving or denying a zone change. The enrichment of a property owner is not acontrolling purpose of zoning. (Byrnes, p. 191)

The Plan of Development is merely advisory and does not bind the ZoningCommission. (Byrnes, p. 191-2)

There is an implied expectation by property owners that the zoning of property willnot be changed except for the public good. (Byrnes, p. 192)


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Ordinarily, a zone classification should not be changed unless some new conditionhas arisen which alters the character of the area, or that there was some mistake inthe original zoning. (Byrnes, p. 193)

The question to be answered by the Commission is whether the public interestrequires an amendment? (Byrnes, p. 196)

Reasons for granting a change of zone must be stated on the record, but failure to doso, or poorly articulating the reasons, are not fatal to an action. (Byrnes, p. 197)

Failure to state reasons may interfere with the proper review of the Commissionsactions by the courts upon appeal. (Byrnes, p. 198)

Although there is no statutory requirement to state reasons for denial, the failure tostate reasons may also interfere with the proper review of the Commissions actionsby the courts upon appeal. (Byrnes, p. 198)

It is necessary to find a basis for the Commissions actions in the public record.(Byrnes, p. 199)

The reasons for any action must be those of the Commission as a collective body,and not individual reasons that the full Commission does not agree on. (Byrnes, p.200)

In acting on a zone change, the Commission cannot use factors that are beyond theCommissions control. (Byrnes, p. 205)

Based on the above, staff suggests that the Commission consider the following:

1. The Commissions findings for the record relative to consistency with the POCD,comprehensive plan, and CGS 8-2;

2. The Commissions actions on the zone change should not result in the unreasonabledeprivation of property rights, or be arbitrary or illegal;

3. The Commissions actions must be in the public interest, and not based on thebenefit to any one individual or group;

4. Highest and best use, or higher monetary value, cannot be used as reasons for its

decision;5. Although the Commission must state how an application complies with the POCD,

the POCD is advisory and not binding on the Commission;6. The Commission must state for the record both the reasons for approval, or for

denial;7.

The Commission should articulate its reasons clearly;8.

The Commission should collectively agree on reasons; and9.

Reasons must be based on factors that are within its control.


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Appendix


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Connecticut General Statutes Section 8-2

Sec. 8-2. Regulations. (a) The zoning commission of each city, town or borough isauthorized to regulate, within the limits of such municipality, the height, number ofstories and size of buildings and other structures; the percentage of the area of the lot that

may be occupied; the size of yards, courts and other open spaces; the density ofpopulation and the location and use of buildings, structures and land for trade, industry,residence or other purposes, including water-dependent uses, as defined in section 22a-93, and the height, size and location of advertising signs and billboards. Such bulkregulations may allow for cluster development, as defined in section 8-18. Such zoningcommission may divide the municipality into districts of such number, shape and area asmay be best suited to carry out the purposes of this chapter; and, within such districts, itmay regulate the erection, construction, reconstruction, alteration or use of buildings orstructures and the use of land. All such regulations shall be uniform for each class orkind of buildings, structures or use of land throughout each district, but the regulations inone district may differ from those in another district, and may provide that certain classesor kinds of buildings, structures or uses of land are permitted only after obtaining aspecial permit or special exception from a zoning commission, planning commission,combined planning and zoning commission or zoning board of appeals, whichevercommission or board the regulations may, notwithstanding any special act to thecontrary, designate, subject to standards set forth in the regulations and to conditionsnecessary to protect the public health, safety, convenience and property values. Suchregulations shall be made in accordance with a comprehensive plan and in adopting suchregulations the commission shall consider the plan of conservation and developmentprepared under section 8-23. Such regulations shall be designed to lessen congestion inthe streets; to secure safety from fire, panic, flood and other dangers; to promote healthand the general welfare; to provide adequate light and air; to prevent the overcrowding ofland; to avoid undue concentration of population and to facilitate the adequate provision

for transportation, water, sewerage, schools, parks and other public requirements. Suchregulations shall be made with reasonable consideration as to the character of the districtand its peculiar suitability for particular uses and with a view to conserving the value ofbuildings and encouraging the most appropriate use of land throughout suchmunicipality. Such regulations may, to the extent consistent with soil types, terrain,infrastructure capacity and the plan of conservation and development for the community,provide for cluster development, as defined in section 8-18, in residential zones. Suchregulations shall also encourage the development of housing opportunities, includingopportunities for multifamily dwellings, consistent with soil types, terrain andinfrastructure capacity, for all residents of the municipality and the planning region inwhich the municipality is located, as designated by the Secretary of the Office of Policyand Management under section 16a-4a. Such regulations shall also promote housing

choice and economic diversity in housing, including housing for both low and moderateincome households, and shall encourage the development of housing which will meet thehousing needs identified in the housing plan prepared pursuant to section 8-37t and in thehousing component and the other components of the state plan of conservation anddevelopment prepared pursuant to section 16a-26. Zoning regulations shall be made withreasonable consideration for their impact on agriculture. Zoning regulations may bemade with reasonable consideration for the protection of historic factors and shall bemade with reasonable consideration for the protection of existing and potential publicsurface and ground drinking water supplies. On and after July 1, 1985, the regulations


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shall provide that proper provision be made for soil erosion and sediment controlpursuant to section 22a-329. Such regulations may also encourage energy-efficientpatterns of development, the use of solar and other renewable forms of energy, andenergy conservation. The regulations may also provide for incentives for developers whouse passive solar energy techniques, as defined in subsection (b) of section 8-25, inplanning a residential subdivision development. The incentives may include, but not be

limited to, cluster development, higher density development and performance standardsfor roads, sidewalks and underground facilities in the subdivision. Such regulations mayprovide for a municipal system for the creation of development rights and the permanenttransfer of such development rights, which may include a system for the variance ofdensity limits in connection with any such transfer. Such regulations may also providefor notice requirements in addition to those required by this chapter. Such regulationsmay provide for conditions on operations to collect spring water or well water, asdefined in section 21a-150, including the time, place and manner of such operations. Nosuch regulations shall prohibit the operation of any family day care home or group daycare home in a residential zone. No such regulations shall prohibit the use of receptaclesfor the storage of items designated for recycling in accordance with section 22a-241b orrequire that such receptacles comply with provisions for bulk or lot area, or similarprovisions, except provisions for side yards, rear yards and front yards. No suchregulations shall unreasonably restrict access to or the size of such receptacles forbusinesses, given the nature of the business and the volume of items designated forrecycling in accordance with section 22a-241b, that such business produces in its normalcourse of business, provided nothing in this section shall be construed to prohibit suchregulations from requiring the screening or buffering of such receptacles for aestheticreasons. Such regulations shall not impose conditions and requirements on manufacturedhomes having as their narrowest dimension twenty-two feet or more and built inaccordance with federal manufactured home construction and safety standards or on lotscontaining such manufactured homes which are substantially different from conditionsand requirements imposed on single-family dwellings and lots containing single-family

dwellings. Such regulations shall not impose conditions and requirements ondevelopments to be occupied by manufactured homes having as their narrowestdimension twenty-two feet or more and built in accordance with federal manufacturedhome construction and safety standards which are substantially different from conditionsand requirements imposed on multifamily dwellings, lots containing multifamilydwellings, cluster developments or planned unit developments. Such regulations shallnot prohibit the continuance of any nonconforming use, building or structure existing atthe time of the adoption of such regulations. Such regulations shall not provide for thetermination of any nonconforming use solely as a result of nonuse for a specified periodof time without regard to the intent of the property owner to maintain that use. Any city,town or borough which adopts the provisions of this chapter may, by vote of itslegislative body, exempt municipal property from the regulations prescribed by the

zoning commission of such city, town or borough; but unless it is so voted municipalproperty shall be subject to such regulations.


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Special Permit Criteria

In considering any application for a Special Permit, the Commission shall, inaddition to other standards in these Regulations, evaluate the merits of theapplication with respect to the following factors:

1. Plan of Conservation and Development Whether the proposed use oractivity is in accordance with or facilitates achievement of one or more of thegoals, objectives, policies, and recommendations of the Plan of Conservation

and Development, as amended;

2. Purposes of Regulations The proposed use or activity is consistent with the

purposes of the Regulations;

3. Environmental Protection and Conservation Appropriate considerationshall be given to the protection, preservation, and/or enrichment of natural,

scenic, historic, and unique and environmental resources and features whichenhance the character of the community;

4. Suitable Location for Use with respect to:a. The size of the lot;b. The nature and intensity of the activities involved in or conducted in

connection with the use;c. The streets giving access to it are such that the use shall be in harmony

with the appropriate and orderly development in the neighborhood in

which it is located; and,d. The impact on neighboring properties and residences or the development

of the district.

5. Appropriate Improvementsa. The design elements shall be attractive and suitable in relation to the site

characteristics, the style of other buildings in the immediate area, and theexisting and probable future character of the neighborhood;

b. The location, nature and height of buildings, walls, and fences, planned

uses and the nature and extent of landscaping on the lot shall not hinder ordiscourage the appropriate development and use of land and buildings inthe neighborhood or impair the value thereof;

c. The proposed use shall have no material adverse impact upon theneighborhood;


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6. Suitable Transportation Conditionsa. The design, location, and specific details of the proposed use or activity

shall not:i. adversely affect safety in the streets;

ii. unreasonably increase traffic congestion in the area;iii. interfere with the pattern of vehicular circulation in such a manner

as to create or increase unsafe traffic conditions.b. Parking area or areas shall:

i. be of adequate size for the particular use;ii. be suitably screened from adjoining residential uses; and

iii. have entrance and exit drives laid out so as to prevent traffichazards and nuisances.

c. Streets and other rights-of-way shall be of such size, condition capacity,

width, grade, alignment and visibility to adequately accommodate theadditional traffic to be generated by the particular proposed use.

7. Adequate Public Utilities and Services

a. The provisions for water supply, sewage disposal, and storm waterdrainage shall:i. conform to accepted engineering practices;

ii. comply with all standards of the appropriate regulatory authority;and

iii. not unduly burden the capacity of such facilities.

b. The proposed use or activity shall:i. provide ready accessibility for fire apparatus and police protection,

and

ii. be laid out and equipped to further the provision of emergencyservices.

8. Nuisance Avoidancea. The use shall be appropriate for the area shall not create a nuisance, and

shall not hinder the public health, safety, convenience, and property

values.

9. Long Term Viability- Adequate provision shall be made for the sustained

maintenance of the proposed development including structures, streets, andother improvements.


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Exhibit List

File 435; Apln 1459; 674 & 684 Albany Turnpike; Assessor Map 21; parcels

1010674 & 1010684; to change 30.386 Acres of the 39 Acre site fromResidential-2 District to Industrial District; Allan Borghesi, agent/applicant;

Satans Kingdom, LLC, owner/applicant.

List as of August 28, 2014

List of Drawings- Submitted July 23, 2014

1. Zoning Location Survey; Entitled-Parcels To Be Changed From Zone AR-2 toZone Light Industrial; Prepared by GM2 Associates, Inc.; Prepared for Satans

Kingdom, LLC; Dated February, 2014 (Revised July 22, 2014).

2.

Zoning Location Survey; Entitled-Parcels To Be Changed From Zone R-2 to I-Zone (Industrial); Prepared by GM2 Associates, Inc.; Prepared for SatansKingdom, LLC; Dated February, 2014 (Revised July 28, 2014).

3. Presentation Zoning Map; Entitled-Parcels To Be Changed From Zone R-2 toZone Industrial; Prepared by GM2 Associates, Inc.; Prepared for Satans KingdomLLC; Dated August 2014; Received August 26, 2014

Correspondence:

1.

Town of Canton Zone Change Application for File 435; Apln 1459; 674 & 684Albany Turnpike; Assessor Map 21; parcels 1010674 & 1010684; to change

30.386 Acres of the 39 Acre site from AR-2 to I-Zone; Allan Borghesi, agent;Satans Kingdom, LLC, owner; Submitted July 23, 2014

2. Assessors Property Card for Parcel #10106743. Assessors Property Card for Parcel #10106844. Copy of Check # 108; Dated July 23, 2014

5. Narrative; Dated July 2, 20146. Copy of Cantons Plan of Conservation and Development, Strategic Plan, Chapter

12

7. Copy of Cantons Plan of Conservation and Development, Strategic Plan, Chapter6

8. Zone Change Checklist responses; Dated July 23, 2014

9. Email from Mike Flaherty to Neil Pade; Dated June 12, 201410.Email from Jason Marino to Neil Pade; Dated June 12, 201411.Email from Steve Allbee to Neil Pade; Dated June 12, 2014

12.Email from Mike Flaherty to Roland Klee; Dated June 12, 201413.Email from Lily Ackley to Neil Pade; Dated June 13, 2014


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14.Email from Janna Lafferty to Neil Pade and Dick Barlow; Dated July 15, 201415.Email from D. Morisano to Neil Pade & Dick Barlow; Dated July 24, 2014

16.Application Completion Review; Dated July 24, 201417.Town of Canton Zone Change Application for File 435; Apln 1459; 674 & 684

Albany Turnpike; Assessor Map 21; parcels 1010674 & 1010684; to change

30.386 Acres of the parcel from Residential-2 District to Industrial District; AllanBorghesi, agent/applicant; Satans Kingdom, LLC, owner/applicant; SubmittedJuly 29, 2014

18.Email from William Doyle to Neil Pade; Dated August 1, 201419.Intermunicipal Notice to the Town of New Hartford; Dated August 5, 201420.Intermunicipal Notice to the Town of Simsbury; Dated August 5, 2014

21.Intermunicipal Notice to the Town of Granby; Dated August 5, 201422.Intermunicipal Notice to the Town of Burlington; Dated August 5, 201423.Intermunicipal Notice to the Town of Barkhamsted; Dated August 5, 2014

24.Intermunicipal Notice to the Town of Avon; Dated August 5, 201425.Letter from Kelly Coppinger McLellan; Dated July 28, 2014

26.

Email to Jocelyn Ayer, NWCOG; Dated August 6, 201427.Email to Lynne Pike-DiSanto, CRCOG; Dated August 6, 201428.Cover Letter to CRCOG; Dated August 6, 2014

29.Zoning Referral Form for CRCOG30.Summary of Zoning, subdivision and POCD Referrals from CRCOG; Dated

August 7, 2014

31.Email from Lynne Pike-DiSanto, CRCOG to Lynn Charest; Dated August 7, 201432.Legal Consideration Relative to Site Walks from Neil Pade; Dated August 13,

2014

33.Email to NWCOG, Jocelyn Ayer from Lynn Charest; Dated August 6, 201434.Email to PZC Members from Michael Pendell; Dated August 17, 2014

35.

Correspondence from Attorney Pearson to Neil Pade; Dated August 14, 201436.Email from Neil Pade to Allan Borghesi; Dated August 19, 201437.Letter from Charles A. Hartigan to Neil Pade; Received August 25, 201438.Email from Susan Pratt to Neil Pade; Dated August 24, 2014

39.Certification of Filing; Dated August 26, 201440.Petition from Louis A. and Judi Friedman; Received August 26, 201441.Letter from Stuart Lieblich to Neil Pade; Dated August 22, 2014

42.Certification of Notice; Dated August 26, 201443.Draft PZC Minutes from August 20, 2014 meeting44.Email from Katherine Allen to Neil Pade; Dated August 27, 2014

45.Email response from Katherine Allen to Neil Pade; Dated August 28, 2014

file #435 apln #1459 674_684 albany zone change

Documents