ZBA

                                              Zoning Board of Appeals

  40 Old Farms Road, Willington, CT

December 13, 2018 at 7:30

Agenda

Members Present:

Richard Maloney

William Bland

John Prusak

Jack Rup

Also Present:

Mike D’Amato – Zoning Agent

Emily Perko – Assistant Zoning Agent

Attorney Rich Roberts

PUBLIC HEARING:

R. Maloney called the Public Hearing to order. E. Perko introduced Mike D’Amato, the new Acting Zoning Agent. He explained he was contracted through CME and starting after the previous Public Hearing.

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 Cease and Desist Order was filed 9/6/18 and was based on a Notice of Violation dated 8/8/18. 

E. Perko said Attorney Dubitsky referenced the Dept. of Agriculture’s definition of farming and Willington did not adopt that definition as they have their own definition of farming.  Willington’s definition is any track of land no less than 5 acres in area to be used for dairy, raising of agricultural products, forest products, livestock or poultry and any other uses thereto.   She said when she visited the site there was no meaningful agricultural activity; not clearing of the land, no fences for livestock and they had about 5 or 6 chickens. E. Perko said, when speaking to the applicant, he did admit to farming other parcels in Willington as well as purchasing supplemental products in state and out of state and reselling them.  She believes the primary use of this farm is commercial and not agricultural and this type of use is not allowed in this zone.

R. Maloney questioned the hay and the shavings as he does not believe they were producing them on the farm; they were bringing them in and selling them.  E. Perko said that is correct. In regards to shavings, she entered photos into the record and they are from New Hampshire; they are not harvesting or growing the shavings on the farm.  R. Maloney asked if they were taking down trees to make the shavings and then supplementing them and E. Perko said not to her knowledge. 

Atty. Roberts said towns’ are allowed to have their own definition of farming and their own regulations pertaining to farming that are more restrictive or exclusive than the statutory definition.  He said it is encouraged to use the broader definition but the Commission’s jurisdiction is to go by what Willington currently has adopted and not the Dept. of Agriculture’s definition.

A discussion was held on the definition of farming and what would be allowed as accessory use to the farm.

Atty. Dubitsky said Willington’s definition of farming is no less than 5 acres and this parcel is more than 5 acres.  He said the principal use is dairying or the raising of agricultural products.  He said it is currently being cleared for pasture and clearing is a farming activity so farming is currently going on regardless of the sale of hay. Atty. Dubitsky said with regard to the shavings, how much is sold is 5 percent or less.  He said shavings and hay are used for horse bedding so essentially they are selling bedding.  The Commission asked if there were horses on the property and Atty. Dubitsky said there are no horses at this time. He said according to 3.57 and 5.02, this is a farm and allowed to operate as a farm.

Atty. Dubitsky submitted photos of the operation as exhibit 15 showing from beginning to end how this farm works.  The photos showed the growing, preparing, raking and baling of the hay.  He said the trailers are used to move the hay and showed a picture of the barn.  The Commission asked about the sign outside the barn and E. Perko said it is advertising the prices. 

A discussion was held on the pasture that is being cleared.  The question was asked if this is the only farm that will be used to raise livestock and the applicant said yes, the livestock will be beef.  They added that they have horses on other farms and hope to eventually add them to this farm. Atty. Dubitsky showed pictures of the machinery being used to construct the house on the property and submitted them for the record. 

A discussion was held on the cleared land, the pasture and when the cattle would be brought on the property and the applicant said within the next couple months.  E. Perko said the last time she was on the site they were actively clearing 2 acres.

Atty. Dubitsky said Mr. Sinoskly was granted an agricultural exemption from IWWC and submitted the minutes for the record. He said the operation is a farm regardless of the hay and farms are permitted in this zone. He said the other violation was 7.08, accessory building to a farm use, and having a barn is accessory to the farm use. Atty. Dubitsky said it is their position that there is no violation and the Cease and Desist order should be overturned.

Further discussion was held on farming and Atty. Dubitsky said this is a farm under Willington’s regulation.  He said, because this land is being cleared for livestock, this is already a farm as clearing of the land is farming. 

Josh Walsh, of Tinkerville Road, submitted a letter for the record.  The letter was from the applicant to James Rupert and Mr. Walsh read the last paragraph which stated that Mr. Walsh was a menacing neighbor that is filming their operation and their children, yelling at family members and trespassing. Mr. Walsh denied all accusations and believes the Sinosky’s should face serious charges with a proper investigation.  He said they should reframe from further efforts to damage his reputation or he will take further action.  He submitted a copy of his statement for the record.

John Starinovich said he believes this property was bought for a retail business and not for farming. He asked if the land is going to be covered with topsoil so they can grow grass for the animals to graze.  The applicant said they are not going to bring topsoil onto the site; they will grow grass on the current terrain.

E. Perko said when she visited the property in June the activity she witnessed was not prepping of the property. There was a culvert across Kidder Brook but the 2 acres had not been cleared.  She said the Town believes this is a commercial operation. 

A discussion was held on the deliberations and R. Maloney asked if they can rule on different parts separately.  Atty. Roberts said they can look at the Cease and Desist and decide if E. Perko was correct in her determination according to the regulations. A discussion was held on the votes needed and Atty. Roberts said they will need 4 votes.  Atty. Roberts said more importantly is to do an analysis and make a determination on each part.

Mr. Starinovich said Zoning is supposed to protect their retail values and he does not see how this is going to maintain or improve their property values.

The applicant said they are currently haying 110 acres. Atty. Dubitsky said at the time E. Perko issued the Cease and Desist, she did not see the land been cleared but it is happening now.  He added that he does not see any decrease in property values and believes living near a farm improves property values.

Gerry Chartier, of 12 Mason Rd, spoke in favor of the Sinosky’s.  In his opinion haying is part of farming.  He said in regards to property values, he does not believe this devalues the property values.  He said Willington is a small town, mostly agricultural based and their roots are seeded in this industry.

A discussion was held on the R80 Zone.  A discussion was held on farming, haying and the need to supplement products at times.  Further discussion was held on Willington’s definition of farming.  W. Bland expressed his concerns on the regulations and read a paragraph from the regulations regarding excluding plants and berries. 

The Public Hearing was closed at 8:20. 

   Regular Meeting

ZBA2018-7 Application for Auto Use Location at 25 Mihaliak Road (Map 46 Lot 20 Zone R80) Owner: Christopher Barr Applicant: Showcase Service Center LLC (Received December 13, 2018 Public Hearing January 10, 2019 Decision within 65 days after close of P.H.)

A site walk was set for January 3rd at 3:30 and the Public Hearing was set for Thursday, January 10th. 

Minutes

R. Maloney motioned to approve the minutes of November 8, 2018.  J. Prusak seconded the motion.  All in favor

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 he believes the Commission should uphold the portion of the Cease & Desist regarding the shavings but strike down the rest of the Cease and Desist.  He said he believes the clearing of the pasture and bringing the hay to the farm makes this a farm and is accessory to the use of the farm.  A discussion was held on haying, the land and the barn.  J. Rup said he believes this is acting as a farm but the shavings are more in the form of retail. The Commission agreed selling of the shavings is commercial.  R. Maloney suggested exclusion of the shavings until which time they are producing them on the farm or using them for the cattle.  J. Rup said buying product from one person and selling to another is not farming.  He said if they were produced on the farm that would be farming.  W. Bland said the town regulations contradict themselves and a discussion was held. 

R. Maloney motioned to uphold the Cease and Desist per 3.57, 5.02 and 7.08 in reference to product purchased outside the farming activity and is not accessory to the farming activity and has been sold at retail at the farming activity for example shavings.  R. Maloney motioned to not accept the Cease and Desist as it relates to the definition of the farming. J. Rup seconded the motion.  All in favor.

Atty. Roberts asked for clarification on the haying portion and the Commission said it was not their intention to include haying. 

W. Bland wanted to clarify a temporary use does not constitute the establishment for illegal non-conforming use in the future per 7.08.

R. Maloney revised the motion to uphold the Cease and Desist as it relates to the shavings as they were brought in and not produced on the farm per 3.57 and 5.02.  The Commission does not uphold the Cease and Desist as it relates to the definition of a farm and haying whether it is contiguous or non-contiguous per 3.57, 5.02 and 7.08. J. Rup seconded the motion.  All in favor.

Mr. Walsh asked if the applicant can sell hay and bring it in from New York and the Commission said yes.  E. Perko will continue to follow up on what the applicant is selling. 

M. D’Amato noted the Commission will receive a Certification of Location application next month.  Atty. Roberts said they will not be reviewing the application as a Zoning Commission but will be acting as an agent for DMV.  He said they will have to look at the proposed location and determine if it is appropriate.  Atty. Roberts said the Statute no longer includes guidance on criteria as it was removed when it was revised by the state.  He suggested the Commission still use the criteria in their determination.

Meeting adjourned,

Respectfully Submitted,

Michele Manas

Michele Manas

Recording Clerk