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7 September 2005 | Approved: 5 October 2005

Chairman John McClelland called the meeting to order at 7:35 p.m. In attendance were Commissioners Darrell Anderson, Peggy Ebner, Bob Evans, Bud O’Connor and alternate Jim Leng. Also in attendance were town residents Kevin Ambrose, Bob Booher, Shu and Jack Buckley, Charlie Challstrom, Georgette Cole, Jim Fletcher, Ralph Hurst, John Hutchinson, Chris and Terry Kirtz, Maureen Neumann, Susan Van Nostrand, George Paine, Kristin and Glenn Perry, Bruce Rothrock, Sarah Steel and Steve Werts. Gary Thomas from Disposition Services, Inc. and Thomas L. Heeney, Attorney were present representing Bruce Rothrock. Attorney Martin J. Hutt was present representing Susan Van Nostrand and Kevin Ambrose. Also in attendance were property owner Al Ergul and Chris Tschita.

Approval of Minutes

The minutes for August were not presented but will be approved in October.

407 Acorn Lane – Review and Clarify Public Record

Chairman McClelland started the meeting by stating that the Planning Commission’s (PC) intentions regarding the issues at 407 Acorn were to clarify public records, review PC information on file, what has been recently discovered and the status of the investigation. The PC does not have the power to rescind a permit but can issue a Stop Work Order. After that, next steps would be up to the Town Council and/or the Board of Zoning Appeals (BZA.) The PC would not address any procedural issues but would review ordinance articles and section numbers, plans and permit applications involved in the approval of the 407 Acorn addition.

In October 2004, plans were presented with a house location survey prepared by Snyder and Assoc. dated 1992. The addition was approved by the PC based on:

1. Article 7, Section 3.14

  • the addition did not increase a non-compliance (distance from the home to a side lot line found on Johnson Alley that faces Town property)
  • the distance between the edge of the proposed addition to front property line showed more than 25 feet
  • the height of the addition was less than 30 feet

2. Article 7, Section 9

  • the property gross square footage included lots 20, 21, 22 and Johnson Alley; the new house, including the addition would cover less than 40% of the property as required in zone RR2

Since this issue has come to light, a number of other surveys of the property have been discovered that vary dramatically from the one that was submitted: A Light, Elliott and Assoc. survey dated 1988 and an Area Survey Certificate. These surveys show the distance from the addition to the front property line to be shorter by approximately 12 feet. Chairman McClelland and Charlie Challstrom measured the east side lot line and found the Light, Elliott & Assoc and the Area Survey to be more accurate. If this information is correct, then the addition would not meet the 25 foot front setback requirement and the 1ft. bump-out would not be permitted. Also, without the additional square footage, then the gross square footage and percentage of lot coverage would need to be recalculated.

Chairman McClelland also reviewed the deed that was signed by Judy Banachowski and Bruce Rothrock and found that it describes the property border on the westerly side of Johnson Alley. If the Johnson Alley square footage is eliminated from the gross square footage calculation, the percentage of lot coverage increases to approximately 43%. Ralph Hurst proposed that the difference between surveys may have been influenced by a quitclaim deed done when Sarah Steel sold a small parcel of her property to the owners of 407 Acorn in 1969. Chairman McClelland also pointed out that if Johnson Alley is not public property then the exception rule found under Article VII Section 3.14 may not apply.

Chairman McClelland proposed that the Town establish ownership of Johnson Alley and ask the Town Council to place property location markers at the intersections on Johnson Alley and Acorn Lane & McCauley Street.

Maureen Neumann said that she hoped the surveys currently being done by the Town would help keep residents from taking over property by eminent domain. Commissioner Anderson noted that the surveys are not marking individual properties. Chairman McClelland raised the question that if an addition is built on the original footprint and the second floor is bumped out one foot, a) is it a problem according to Article Section Section 3.14 and b) if the eves hang out over public property? And is this any different than, for instance, the porches on 2nd Avenue that are ON public property?

Sarah Steel said that if the Rothrock property runs across Johnson Alley, a potential problem regarding vehicular access (especially large trucks & emergency vehicles) is raised . Chairman McClelland noted that according to Town Records, their property ends on the west side of Johnson Alley making Johnson Alley a public road. Bruce Rothrock said he has another document verifying ownership of the Alley. Chairman McClelland said that the Town needs to establish ownership of the property and find out the rules of adverse possession/eminent domain since the Town has maintained and used the property as a public roadway for 50+ years. Bruce Rothrock stated that tax assessment records indicate that Johnson Alley is part of their property.

At this point the PC discussed the issues. Commissioners Anderson and O’Connor verified that the 1×8 ft. bump-out is not a bay window. Commissioner Leng said that they need to know which survey is the legal document. Chairman McClelland said it should be forwarded to the Town attorney to determine which survey is legal and perform a title search to determine who is the legal owner of Johnson Alley. Commissioner O’Connor noted that the PC can’t lose sight that the eaves of the addition could end up over the road.

Susan Van Nostrand said that the addition was supposed to be on the original footprint, but when they added the basement that was not approved on the permit, the cinder block added 3.5 inches to the outside wall. At the closest point to Johnson Alley, it is under 2 inches from cinder block to road. Chairman McClelland noted that even if the new construction exceeds the original footprint and if amended plans were presented at a later date the addition would still be approved – assuming the addition continued to meet ordinance requirements. So this point becomes a procedural issue that the Town fails to address under current ordinance. Kevin Ambrose said then we are left waiting for a survey.

Susan Van Nostrand noted that if the owners had built what was on the plans, then there would not have been an overhang on Johnson Alley. Chairman McClelland asked Bruce Rothrock if he contends that they own Johnson Alley. Bruce Rothrock stated "yes." Chairman McClelland requested copies of all documentation regarding title and ownership on 407 Acorn Lane.

Chairman McClelland then restated that he thinks two things need to be next steps:

  1. Establish ownership of Johnson Alley
  2. Assuming the Town owns Johnson Alley, ask the TC to put in property markers at either end of Johnson Alley.

Commissioner Ebner asked when this can be done. Chairman McClelland said he will call the Town attorney, Bill Roberts, tomorrow and ask him to expedite it. He stated that without evidence, the PC has no authority to issue a Stop Work Order. They are only applied where there is a clear violation.

Bruce Rothrock noted that at the beginning of the meeting, Chairman McClelland said that he doesn’t think the PC has the authority to rescind a permit and questioned the outcome after more information is obtained? Chairman McClelland stated that providing potential answers to hypothetical "what ifs" would be irresponsible.

Jim Fletcher asked if the PC makes their decisions based on documents that are presented with the permit. The Commissioners agreed that this is current standard procedure and that in the past a house location survey has been admissible with the permit. Jim Fletcher stated that some municipalities ask owners to have surveys done and markers set when properties change hands. The Commissioners agreed that this would be worth future review.

Maureen Neumann asked if the PC makes suggestions to property owners regarding their proposed renovations and noted the need for a Town building inspector to make sure that what is permitted is what is being built. Chairman McClelland said that suggestions and recommendations are routinely made by the PC, however, many are ignored. The HPC also presents recommendations on building plans, mass, style, etc. Commissioner Anderson noted that the TC has voted to hire an "enforcer" but there had to be work done on the ordinances to allow for penalties before one could be hired.

Chairman McClelland moved to ask Town Attorney Bill Roberts to review land records to find out ownership of Johnson Alley. Contingent on that response, if Johnson Alley is owned by the Town, the PC will ask the TC to put location/property markers on the four corners of Johnson Alley. Voted unanimously in favor.

Kevin Ambrose said that, "we should have a stop work order right now." Chairman McClelland said that the ambiguity of current evidence prohibits that course of action.

Building Permits

The following building permits were discussed and voted on by the Planning Commission:

  • 202 Grove Avenue » Sun room addition complies with Article 7, Section 9. Square foot estimated at 15% of total lot value, height, distance to rear lot lines comply. Approved unanimously.
  • 102 Center Street » Deck roof complies with Article 7, Section 9. Approved unanimously.
  • 121 Chestnut Avenue » Fence replacement complies with Article 7, Section 3.328. Four foot maximum on property facing Chestnut Ave. Approved unanimously.
  • Porch Addition » doesn’t comply with Article 7, Section 3.329. Denied unanimously.
  • 115 Chestnut Avenue » Demolish/new construction does not meet setback requirements and lack of required documentation (plat survey, framing drawing and elevations) per Article 7, Section 9. Denied unanimously.
  • 350 Ridge Road » Al Ergul, developer of 350 Ridge Road, sent a letter (see attachment B) to the PC regarding the return of a $5,000 cash bond as part of the Town’s Public Improvement Agreement. The letter argued that the wording on the PIA sounded like the lots on his property were separate and that the buried utilities were only required on the new building. He also pointed out that the builder next door did not bury the utilities. Chairman McClelland explained that the signed PIA clearly defines the "subject property" as 350 Ridge Road prior to the subdivision so all requirements apply to both subsequently subdivided lots. The cost of moving the utilities and other previous construction sites are not relevant to the PIA under question. Commissioner Ebner noted the prior conversation with Mr. Cakmak at last month’s PC meeting when all parties verified the terms of the PIA. The PC reiterated that the $5,000 cash bond would be returned once all PIA requirements are satisfied .
  • 315 Grove Avenue » Chris and Terry Kirtz are installing doors on the screened porch of their house at 315 Grove Ave. The porch is located on Town property and the screen was installed by a prior owner without a Town approval or permit. The PC notified the Kirtz’s that the doors and the screen are out of compliance with Article 7, Section 4.2 and to cease putting up the doors. Terry Kirtz asked if the PC is going to pursue every non-compliant property in Town and require compliance.

Revise Article 7, Section 5.32

Chairman McClelland moved to recommend to the TC to add "or height" after "side yard" in Ordinance 7, Section 5.32. The motion was passed: 3 in favor (McClelland, Anderson & Evans), 1 against (O’Connor).

Report from Town Council

Commissioner Anderson submitted a list (see attachment A) of Ordinance revisions that have been recommended to the TC by the PC that have yet to be acted upon by the TC.

Missy Yachup – Secretary

The meeting was adjourned at 10:50 p.m.

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