ZBA

                                              Zoning Board of Appeals

  40 Old Farms Road, Willington, CT

November 8, 2018 at 7:30

Agenda

Members Present:

Richard Maloney

Mark Masinda

William Bland

John Prusak

Also Present:

Jim Rupert – Acting Land Use

Emily Perko – Zoning Enforcement Officer

Attorney Rich Roberts gave an outline on how the meeting should be handled. He explained the Cease and Desist and said it was appealed in a timely manner.  Adequate public notice was also done as required by State Statute.  Atty. Roberts said the Commission’s roll is to take evidence from the Zoning Agent and the property owner and make a determination.  A discussion was held on the order in which to proceed.

PUBLIC HEARING:

R. Maloney called the Public Hearing to order.

ZBA2018-6 Appeal of Cease & Desist order by Zoning Agent at 121 Tinkerville Road (Map 40 Lot 35 Zone R80) Owner/Applicant: Vincent T. Sinosky (Received October 11, 2018 Public Hearing November 8, 2018 Decision within 65 days after close of P.H.)

R. Maloney said the Cease and Desist Order was filed 9/6/18 and was based on a Notice of Violation dated 8/8/18.  The Cease and Desist Order was entered into the record as exhibit 1 and the Notice of Violation is exhibit 2.

E.  Perko explained the complaints on the activity happening at 121 Tinkerville Road which included the traffic in and out, bringing in hay to the barn and selling of the hay.  The hay was not produced on the farm so E. Perko did not feel this was an accessory use to the farm.  She said bedding, feed and pellets, not produced on the property, were also being distributed.  A Notice of Violation was issued and after which Mr. Sinosky admitted the operation was continuing.  At this time, E. Perko issued a Cease and Desist Order.  She added that she believes the sale of hay continued after the Cease and Desist was issued.

E. Perko said she visited the property after the Notice of Violation was issued and there were no acts on the property at that time but there was a lot of hay in the barn.  She added that Mr. Sinosky has been very open about the operation.

E. Perko explained that the activities were done off the farm and then brought in.  R. Maloney clarified that if the hay was grown, cut, processed and stored on the farm, the activities would have been allowed. E. Perko said when visited the farm, she witnessed the barn half full of hay as well as shavings; both of which were not produced on the farm.

E. Perko said she received multiple complaints and they were entered into the record. She said she received 2 formal complaints as well as photos of the operation occurring.  The complaints were on the heavy traffic flow of tractor trailers trucks as well as the timing of the deliveries and the noise.  There was also a complaint on the work being done on the property.

John Starinovich said he filed an online complaint in November of 2017 and E. Perko said she did not have a copy of it in the file.  He said his complaint was on the tractor trailers and the hay being brought in late at night.  R. Maloney asked the amount of trucks coming in and out during the week and Mr. Starinovich said 3 or 4. Atty. Rich Roberts said that the town had some glitches with their software and lost a lot of emails. 

Atty. Dubitsky asked for copies of the complaints. 

R. Maloney opened the floor to the Public.

Ann Starinovich, of Lustig Road, said she is aware of the tractor trailers coming in and out and this is an issue with the children.

Janet Zeh, of Tinkerville Road, said her major concern is if the town allows a commercial business to operate in a residential property, what happens to the property values.

Josh Walsh, of Tinkerville Road, said he is concerned on property values and quality of life.  He explained his concerns on the tractor trailers, the timing at night and the idling in close proximity to his son’s bedroom. He said this is an R80 Zone and none of the products are being produced on the property.  Mr. Walsh said there is an increase in customers coming to property to pick up the hay and the operation is growing.  He added that the operation does not fit in with a residential area.

John Starinovich, of Lustig Road, said he agreed with what has been said.  He questioned if the homeowner can put in additional barns and believes this operation is illegal. Mr. Starinovich expressed his concerns on the trucks and the noise.  He said the Commission is charged with preserving and protecting the value of the properties and said no one will want to buy his property with this activity going on. Mr. Starinovich said he heard the applicant is taking care of some of the fields owned by the Town of Willington and questioned if this is happening; he believes this is a conflict of interest. R. Maloney said this is not a conflict of interest with this board as they act independently.

Steven Black, of Tinkerville Road, said he is also concerned on the trucks, the noise, the children and the value of their homes. 

Attorney Dubitsky spoke on behalf of the applicant.  R. Maloney questioned sales tax and Atty. Dubitsky said animal feed is not taxable which also includes hay. He explained Mr. Sinosky is a farmer and handles farms in Willington, Ashford and a number of properties in the area but his base is the farm that he owns.  He explained that many farms in CT are made up of a number of parcels that are noncontiguous as farmers have to find land that is available to farm. Mr. Sinosky has been doing this since 2012 and leases properties in Willington from the town and from private landowners.  His parcel is part of his farm unit that is not contiguous to his other farms.  Atty. Dubitsky said he produces and cuts on various parcels that he leases and brings it to his home base farm. He said he also has farming activity that occurs on his property which includes cleaning and clearing the land, putting fences up, and livestock operation.  He added that the preparation of the land is considered farming.  Atty. Dubitsky said regulation 3.57 allows for farming in the zone and also allows for any uses accessory thereto.

The pictures included with the complaints were submitted for the record.  Atty. Dubitsky referenced the pictures and said the pictures of the truck hauling hay, the land clearing and the picture of the farm tractor pulling hay were all farming.  He went through some of the remaining pictures such as the pickup truck full of hay and said it is all part of farming. Atty. Dubitsky said the picture of the oil delivery and the picture of the construction of his home are not zoning violations.

A Certificate of Zoning Compliance, issued in 2006 to build the barn, was added for the record. He said at the time the barn was built there was no house and the barn was for the agricultural use of the farm. Atty. Dubitsky submitted the property card as exhibit 6 and said the land is in Public Act 490.   A discussion was held on the property card and the building permits for the outbuilding (barn) and the residential home. A discussion was held on the 14 acres of pasture listed on the property card. Atty. Dubitsky said the entire parcel except for the area of the house is used for farming and added that the information on the property card is how the parcel is taxed.

Atty. Dubitsky submitted the case of Sackler vs. Inland Wetland Agency, Town of Woodbridge, for the record as exhibit 7.  He said the case makes it clear that the preparation of the land for the farming operation is considered farming under the IWWC Statutes.

R. Maloney said the public can look at the exhibits entered for the record in the land use office. Atty. Dubitsky read through the regulations pertaining to farming and said the property is being cleared for pasture.

Atty. Dubitsky submitted a case for the record referencing farmers using various parcels that are noncontiguous and said it is still considered farming. Mr. Walsh asked if noncontiguous parcels included New York State because that is the license plate on one of the trucks.  Atty. Dubitsky said that is supplemental feed when the farmer starts to run out of hay and Mr. Walsh asked if hay is allowed to be brought in from New York. Atty. Dubitsky said that would be considered accessory use and a discussion was held.  The notice to the landowner dated 10/22/18 was submitted as exhibit 10.

Mr. Black asked the Attorney to address the trucks turning around on the abutter’s properties and Atty. Dubitsky said that should not be happening and they will attempt to stop that.  Ms. Zeh questioned shavings that are being sold even though they are not producing them.  Atty. Dubitsky said they are producing hay and that would be an accessory use.  A discussion was held on the information on the applicant’s website and the area’s in which the hay is coming from. E. Perko submitted information from the applicant’s website as exhibit 11. A GIS zone map was submitted as exhibit 12 by Atty. Dubitsky.

Atty. Dubitsky said the State of CT Dept. of Agricultural came and inspected the parcel and confirmed it is a farm and submitted the document as exhibit 13. He read the document for the record. A member from the public asked where the shavings are grown and Atty. Dubitsky said it doesn’t matter what property they are grown on.

Atty. Dubitsky said they believe the Cease and Desist Order was issued in error. He said the property and operation that is going on at 121 Tinkerville Road is a farm as defined in the Zoning Regulation 3.57.  He said there is no violation of 3.57 or 5.02 as it allows for a farm permitted as of right and as a result, there is no violation of Section 7.08.  Atty. Dubitsky added that the buildings are being used as permitted for storage of agricultural products.  He asked that the Cease and Desist Order be removed. 

R. Maloney questioned the unpermitted sign and solar panels in the Notice of Violation and Atty. Dubitsky said that has been remedied. 

E. Perko said, although the Attorney presented information on the State Statute’s definition of farming she does not believe this operation meets that definition.  Atty. Roberts said the definition states the principal use of the property is dairying or raising agricultural products and any accessory thereto.  He added that accessory implies subordinate or incidental and not dominant which appears to be what the case is here.  R. Maloney said although there is a State Statute with a definition of farming, Willington Zoning has narrowed that significantly and this Commission is bound to Willington’s definition.  Atty. Dubitsky said if farmer farms 10 different parcels of land in town, they would be required to build a barn on each parcel and sell from each parcel; they could not bring products to another farm to sell. He said that would be an absurd result and should not be the interpretation of the Zoning officer.  Atty. Dubitsky said, in Mr. Sinosky’s case, he would be required to build a barn on property that he does not own including town property.

Mr. Walsh questioned how the applicant was able to do business before they bought this parcel.  Atty. Dubitsky said almost all farms in this state are in residential areas.  He referenced Statute 19A-341, Right to Farm, and read it to the Commission. He said the State of CT encourages farming and most farms in this state have a farmhouse, barn, fields and conduct some sort of agricultural activity and many have other parcels not owned by the farmer and are not contiguous. R. Maloney questioned how to mitigate the difficulty the residents are having.  Atty. Dubitsky said the late night delivery was a 1 time thing due to an ice storm and the Sinoskys want to work with the surrounding homeowners.  He said the issues can be addressed between neighbors and he would suggest dealing with the issues via phone calls.

R. Maloney asked if Atty. Dubitsky would like to submit a plan of action to the Commission and he said no, this should be worked out between neighbors.  He added that he would be glad to host a meeting to sit down and discuss hours and issues in the complaints.  Atty. Dubitsky said the issue of excavation cannot be eliminated as the Sinoskys are building a house on the property and the issue of hay coming from out of state is infrequent and only when they run out of hay. 

Mr. Starinovich asked about property values that the town is supposed to protect.  He said they invested into a residential area and now a huge retail business is in the area and questioned how this is legal. Atty. Dubitsky said farming is an activity that is encouraged in CT and towns are trying to do what they can to encourage farming. Ms. Zeh questioned how tractor trailers are part of farming and a discussion was held. 

Mr. Walsh said he talked to both the property owner and the business owner several times.  He said they have gone down that road and nothing was resolved.

A discussion was held on the products sold at farms and on this farm. R. Maloney submitted a letter from the Sinoskys to James Rupert for the file.

A discussion was held on how to handle the ruling on the Cease and Desist. Atty. Roberts said they can break up their rulings. Atty. Roberts said the Commission has 65 days from the close of the Public Hearing to act.   A discussion was held on closing the Public Hearing or keeping it open.

The Commission asked for a copy of the Right to Farm Law. E. Perko said the Right to Farm Law only overrides nuisance ordinances and not zoning ordinances. Atty. Dubitsky said the zoning regulations have to be interpreted in light of that Statute.  R. Maloney explained that when a Cease and Desist is ordered and appealed, the applicant can continue to operate until a ruling is made by the Commission.

The Commission agreed to keep the Public Hearing open. R. Maloney suggested the applicant submit a plan of action.  A discussion was held on a site walk. Atty. Roberts suggested, if they choose to do the site walk, it is done as a group.

The Public Hearing was continued to December 13, 2018 at 7:30. 

   Regular Meeting

ZBA2018-6 Appeal of Cease & Desist order by Zoning Agent at 121 Tinkerville Road (Map 40 Lot 35 Zone R80) Owner/Applicant: Vincent T. Sinosky (Received October 11, 2018 Public Hearing November 8, 2018 Decision within 65 days after close of P.H.)

The Public Hearing was continued.

Meeting adjourned,

Respectfully Submitted,

Michele Manas

Michele Manas

Recording Clerk